Jerry LOUIE, Appellant,
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Jerry LOUIE, Appellant,
vs.
COLVILLE TRIBAL FEDERAL CORPORATION, Appellee,
Case No. AP13-023, 7 CTCR 04
13 CCAR 01
[Mark J. Carroll, Attorney, for Appellant.
Timothy H. McLaughlin, Attorney, for Appellee.
Trial Court Case No. CV-OC-2012-35234]
Decided February 17, 2016.
Before Justice Theresa M. Pouley, Justice Rebecca Baker, and Justice Gary F. Bass
BAKER, J.
This matter comes before this court on appellant Jerry Louie’s Motion for
Reconsideration of the Opinion and Order of this court filed December 1, 2015. Appellant is
represented by Tribal Spokesperson Mark J. Carroll. Appellee is represented by Tribal
Spokesperson Timothy H. McLaughlin. The Motion for Reconsideration was timely faxed, filed
and served. CTFC’s Response to the motion was also timely. This court has fully reviewed these
pleadings of the parties in accordance with CTC 1-2-124 which provides for there to be no reply
brief or oral arguments on such motions, unless otherwise ordered by the Court of Appeals.
The court is now fully advised with respect to Louie’s Motion for Reconsideration and
finds that a reply brief would not be helpful to the Court of Appeals, and that oral argument is
also unnecessary.
1. Mr. Louie was afforded Due Process Before the Tribal Court.
Mr. Louie is correct that we did not directly address his argument that he was denied a
“hearing” and thus due process of law in the Tribal Court, and for this we apologize. Let us
expressly address the issue now.
As we explained fully in the course of our Opinion and Order, the decision of a tribunal
without hearing oral argument on an issue not necessarily a denial of a “hearing” or in turn due
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process. The point is that the parties must be allowed an opportunity to weigh in fully on the
issues being decided. In this case, our review of the Tribal Court pleadings, as well as the Judge’s
lengthy decision indicates that Mr. Louie, through counsel, was allowed to brief all of the issues
he wished to raise, and the Tribal Court decided the case based entirely on issues of law.
Similarly to the way the Administrative Hearing Officer (“AHO”) handled a pretrial motion - a
procedure of which we approved - full briefing was allowed and obviously considered, as
evidenced by the Tribal Court Judge’s written order. And while it is true that an evidentiary
hearing was not held in Tribal Court, we have already pointed out that no such hearing is
appropriate in this kind of case, at least under the circumstances of this case, which involved a
full-fledged evidentiary hearing before the AHO. We will not repeat these reasons here, but
suffice it to say that we adopt the same reasoning as set forth in Part IV.B.2 of our Opinion and
Order in concluding that no due process violation occurs when, equally in the Tribal Court as in
the administrative hearing setting, the parties have a full opportunity to express their arguments
on a legal issue or issues through their briefing.
2. Mr. Louie Was Bound by His Agreement to Be Subject to CTFC’s Employee Policy
Manual, Which Allows No Direct Appeal under the Tribes’ Administrative Procedures Act.
We have addressed this issue at pages 10, 11, and 15-16 of our Opinion and Order. We
agree with CTFC that, although the Supplementary Procedures may not have been adopted as
contemplated in the Employee Policy Manual (“EPM”), the procedures in that regard were of no
consequence in this particular case. Under the EPM, there is simply no direct appeal to Tribal
Court from an AHO’s decision terminating a CTFC employee; the Tribes’ Administrative
Procedures Act does not apply to CTFC employees. See CTFC’s Response to Louie’s Motion for
Reconsideration, at 2-3 (Part II of Response).
3. The Lack of a Complete Recording of the Administrative Hearing(s) Does Not Entitle
Mr. Louie to Relief Before the Tribal Court or this Court.
We emphasize that, in the circumstances of this case, where Mr. Louie was obviously
afforded due process before the AHO, and where he makes no particularized challenges to the
AHO’s findings of fact or conclusions of law (see discussion, infra), the lack of a full recording
does not implicate due process or entitle Mr. Louie to a new hearing.
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4. A Generalized Challenge of “All Findings of Fact” and “the Entire Order” Is No
Adequate for Purposes of Appellate Review.
Mr. Louie, in his Motion for Reconsideration, argues that a challenge to the AHO’s order
in its entirety, without specific challenges to findings of fact or conclusions of law, entitles him
to challenge any and all of the findings and conclusions at this level of review. But this reasoning
ignores Court of Appeals Rule 17(1) which requires particularized challenges on motions for
reconsideration, which has not been done. Moreover, we find the reasoning in the Washington
case of McCoy v. Kent Nursery, Inc., 163 Wn.App.744, 260 P.3d 967 (2011), to be persuasive.
Indeed, as explained at 163 Wn.App. at page 788, appellate courts have no business resolving
issues of credibility; that is for the tribunal before whom testimony was given to do. The AHO
clearly did that, despite our criticism of the way she phrased some of her findings of fact. And, as
we pointed out in our Opinion and Order, at page 24, note 23, Mr. Louie made no challenge to
the sufficiency of the evidence in how the AHO resolved credibility issues.
We therefore find no basis for a reconsideration of our Opinion and Order affirming the
Tribal Court, albeit for perhaps different reasons than those cited by the Tribal Court Judge.
Accordingly, we enter the following:
ORDER
Mr. Louie’s Motion for Reconsideration is hereby Denied.
Michael D. DESAUTEL Jr. and Terrance RANDALL, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP15-011/016, 7 CTCR 5
13 CCAR 03
[David Stevens, Office of Public Defender, appeared for Appellants.
Jared Cobell and Wes Meyring, Office of Prosecuting Attorney, appeared for Appellee.
Trial Court Case No. CR 2014-37316/CR 2015-38158]
Hearing held January 19, 2016. Decision entered May 13, 2016.
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13 CCAR ___
Before Hon. Anita Dupris, Hon. Dennis L. Nelson, and Hon. Michael Taylor
Dupris, CJ
SUMMARY
Two cases have been consolidated herein for the purpose of addressing the same legal
issues presented, Michael Dewayne Desautel, Jr. v. CCT, AP16-011, and Terrance Johnathan Randall
v. CCT, AP15-016. In both cases the appellants entered uncontested pleas of guilty to the
multiple charges against them. All six charges against Desautel1 and all four charges against
Randall each carried the maximum penalty allowed under the Colville Tribal Law and Order
Code (CTLOC), that is, up to 360 days in jail and/or a fine of up to $5,000.00.
At their respective sentencing hearings, each of the appellants was sentenced to
consecutive jail terms on each of the counts of charges against them. Desautel was sentenced to
a total 1080 days in jail with 540 days suspended on the first three charges, and a total 1080
days with 715 suspended on the last three charges. On October 5, 2015, Randall was sentenced
to a total 1170 days in jail with 930 suspended.
Appellants challenged the Trial Court’s authority to impose consecutive sentences in
each case based on the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(c) (ICRA), which was
amended in 2010 by the Tribal Law and Order Act of 2010, Pub.L.No. 111-211, § 234 (a), 124
Stat. 2258 (TLOA). The Trial Court ordered briefing on the issue but did not render a decision
on it, and entered consecutive sentencing judgments.
Both cases were timely appealed. After briefing, oral arguments were held on January
16, 2016. We find that the consecutive sentences entered in both cases violate the ICRA, as
amended by the TLOA, and vacate and remand for new sentencing in compliance with this
opinion and order.
STANDARD OF REVIEW
We review questions of law de novo. CCT v. Naff, 2 CCAR 50 (1995).
ISSUE
1
Desautel entered Alford pleas to three charges on April 13, 2015, and Alford pleas to three similar charges on April 21, 2015.
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Did the Trial Court violate the ICRA by imposing consecutive sentences in one criminal
proceeding which exceeded 360 days in jail without being compliant with the TLOA
requirements regarding available rules of evidence?
DISCUSSION
This is a case of first impression. We are asked to review the application of the ICRA’s
amended sections regarding stacking sentences, and what is required of a tribal court in order
to be allowed to stack the sentences under the TLOA amendments to the ICRA. TLOA was
enacted in 2010, and, in the relevant section, expanded a tribal court’s authority to sentence
defendants to longer jail terms, under certain conditions. Section 1302(b) states the tribal courts
may sentence a defendant up to three years in jail for each offense; section 1302(c) states that if
a defendant is sentenced to more than a year in jail, the tribal government shall, among other
things, make its rules of evidence available to the public. This latter section is the only one
considered in this appeal. That is, Appellants argue the Tribes does not have written rules of
evidence for a defendant to review, and, thus is not TLOA compliant to impose jail sentences
longer than 360 days. We agree.
The only statutory reference to rules of evidence is found at CTLOC § 2-1-171.2 We have
ruled on specific evidentiary issues brought before our Court, finding guidance in the Federal
3
Rules of Evidence (FRE’s), by applying our CTLOC’s Applicable Law section, 1-2-11. In CCT v.
Waters, 3 CCAR 35 (1996), we adopted the hearsay and impeachment FRE’s. See, also, Cate v.
CCT, 12 CCAR 15 (2015) and Lambert v. CCT, 12 CCAR 32 (2015), (COA's reliance on FRE's.)
Appellants’ position is that the Tribes has not adopted rules of evidence, a prerequisite
to allowing consecutive sentences over 360 days. Appellants rely on the plain reading of the
ICRA, §§ 1302(b) and (c) (§ b; § c). Appellee asks us to look at the totality of the tribal laws, both
statutory and case law, and find that the TLOA requirements of the ICRA are met.
It has been long-recognized by this Court that the ICRA is applicable to the Tribes. It is a
federal mandate to all tribal governments, incorporating the basic principles of due process and
2
“The Court shall not be bound by common law rules of evidence, but shall use its own discretion as to what evidence it deems necessary and
relevant to the charge and the defense.”
3
“In all cases the court shall apply, in the following order of priority, unless superseded by a specific section of the Law and Order Code, any
applicable laws of the Colville Confederated Tribes, tribal case law, state common law, federal statutes, federal common law and international
law.”
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13 CCAR ___
equal protection in the several tribal courts of the nation. We have noted in our cases, too, that
tradition and custom mandate a deference to due process standards. See, e.g., CCT v. Meusy, 10
CCAR 62 (2011).
In CCT v. Vincent, 12 CCAR 07, 09 (2015), we held that the “basic concepts of due
process require that the community subject to the law must be able to ascertain with certainty
the law that the government may apply to them and that the government officials are not
permitted to select among a variable set of standards.” Appellants argue the lack of specificity
in rules of evidence; Appellee argues the totality of the laws support guidance for parties in
knowing what rules to follow. We find the Tribes’ argument unsupported by a review of the
law.
A defendant cannot be presumed to be knowledgeable about rules of evidence, even
though once he or she is appointed an attorney, that knowledge may be available through the
attorney. The ICRA is very specific on its requirements under § c. Specifically, § c states that
tribal governments seeking to impose sentences longer than 360 days “in any one criminal
proceeding” must, before the defendant is charged, have publicly available rules of evidence.
There is no ambiguity to this language.
Appellee conceded on record that the sentencing hearing on the appellants’ multiple
charges was during “one proceeding.” As far back as 2002 we recognized the lack of rules of
evidence at the trial level. See, Louie v. CCT, 8 CCAR 49 (2002). We have adopted, piecemeal,
different sections of the FRE’s as guidance in our Court, but we have not seen similar actions at
trial level. There is no consistent statement from the Trial Court on which rules of evidence it
follows, and the Colville Business Council (CBC) has not adopted any statutory rules at this
time.
The lack of rules of evidence, given the longevity of our Court system, is troubling, and
the problem has caught up with us. As a matter of basic due process mandates, and as a matter
of the mandates of the ICRA as amended by TLOA, our ruling in St. Peter v. CCT, 2 CCAR 2
(1993) is no longer viable. There we held that no federal law existed that prevented sentence
stacking; this is no longer true.
We can see no other judicial remedy for the Trial Court. Our basic evidentiary statute,
CTLOC § 2-1-171, is no longer adequate to address the issue raised herein because of the new
mandates of the ICRA. Appellee argues that the rules of evidence are simply put: “deemed
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necessary and relevant.” Although this language recognizes the time-honored principle of
judicial discretion, it no longer provides adequate notice to parties of what can be deemed
necessary and relevant. Its ambiguity defeats the purpose of adequate notice.
This case raises the concern of what rules of evidence should be used in our cases.
CTLOC § 1-2-11 gives our Court the discretion to adopt, as guidance, rules that would comport
with due process. As such, in criminal cases (civil evidence issues are not before us), we
exercise that discretion and hold that in all future criminal matters coming before the Court of
Appeals, we will apply the FRE, a federal statutory evidence scheme adopted by Congress in
1975, for the federal courts. The CBC at any time may amend, revise, or reverse this ruling by
enacting code provisions dealing with presentation of evidence in criminal proceedings. Until
such time as the tribal legislature acts, the FRE will be applied to resolve criminal evidence
issues brought to the COA. As has been with all of the decisions of our Court of Appeals, this
decision shall be publicly published and available to all persons.
We further hold that the TLOA mandate of the ICRA, 1302( c) requires rules of evidence
applying to the Trial Court be made available to defendants before they are charged. Until the
publication of this decision, there were no adequate rules of evidence, compliant with the
newly-amended ICRA, available to the Trial Court4. Therefore, the appellants cannot be
sentenced to more than 360 days in “one criminal proceeding.” In as much as St. Peter v. CCT,
supra, is contrary to this ruling, we overturn it.
The judgments in the cases before us are VACATED and the cases are REMANDED for
sentencing in compliance with this opinion and order.
4
We will not go as far as to mandate the Trial Court also adopt the FRE's, but strongly urge that it does so until such time as the CBC addresses
the issue too. This would be a logical practice for the Trial Court in light of the fact it knows that the FRE's are the standard by which we will
review the criminal cases from hereon.
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13 CCAR ___
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Myron MICHEL, Appellee.
Case No. AP16-008 IA, 7 CTCR 06
13 CCAR 08
[Jared Cobell and Curtis Slatina, Office of the Prosecuting Attorney, for Appellant
Dan Connolly, Attorney at Law, for Appellee
Trial Court Case No. CR-2016-39052]
Hearing held June 17, 2016. Decided June 22, 2016.
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice Dennis L. Nelson
Nelson, J.
At a trial readiness hearing on June 17, 2016, the Colville Confederated Tribes (CCT) moved to
dismiss without prejudice the complaint against the defendant, Myron Michel, on the grounds that
requested evidence had not been forthcoming. The Trial Court suggested a continuance rather than a
dismissal which was declined. Subsequently, the Motion to Dismiss Without Prejudice was denied and
the matter scheduled for trial. CCT immediately filed an interlocutory appeal which review was granted.
The Trial Court then ordered a stay of proceedings. After reviewing the file and considering the
comments of the parties, we vacate the Trial Court’s Order Denying Motion to Dismiss Without
Prejudice and Motion to Dismiss With Prejudice5.
The Appellant raised two issues: (1) whether the Trial Court abused its discretion by ordering the
Tribes to proceed with trial despite their motion to dismiss without prejudice; and (2) whether the Trial
Court can “estop” the Tribes from introducing evidence obtained subsequent to a pre-trial hearing.
For reasons set out below we consider only the first issue, i.e. whether the Trial Court erred in
denying the Tribes’ Motion to Dismiss Without Prejudice.
STANDARD OF REVIEW
The standard of review for abuse of discretion for contempt of court matters was adopted by this
5
Appellee orally requested the Motion to Dismiss With Prejudice, without citing any grounds for dismissal. Order Denying Motion to Dismiss
Without Prejudice and Motion to Dismiss With Prejudice, at 1.9.
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13 CCAR ___
court in Sonnenberg v. Colville Tribal Court, 5 CCAR 9, 3 CTCR 09, 26 Ind.Lw.Rptr 6073 (1999). We
now broaden that standard to include appeals dealing solely with abuse of discretion. A trial court’s order
will be overturned only if its action was “manifestly unreasonable, or exercised on untenable grounds, or
for untenable reasons.” Sonnenberg citing State v ex rel. Carroll v. Junker, 79 Wn.2d 120, 122-123, 482
P.2d 307 (1966).
FACTS
The facts in this matter are not contested. At the readiness hearing on June 6, the Tribes stated
they were not prepared to proceed to trial and moved to dismiss the complaint against the defendant on
the ground that requested evidence had not been forthcoming. The Trial Court suggested the matter be
continued rather than dismissed. The Tribes declined to request a continuance of the trial. The Trial
Court denied the motion to dismiss and ordered the Tribes to proceed with trial on June 9.
The Trial Court’s written order, dated June 7, found the Tribes’ motion to be “untimely and
non-specific about what information was requested and whether that information is necessary for the
Tribes to prove the elements of the crime.” The Order also “estopped” the Tribes from introducing any
evidence procured after the pretrial hearing, thus preventing them from using at trial the additional
evidence they were seeking from the police department.
DISCUSSION
We have previously held that prosecutors have “broad discretion” in determining whether a
criminal matter is to be prosecuted. See CCT v. Laramie6, 2 CTCR 66 citing Wayta v. United States, 470
U.S. 598 (1985), 24 ILR 6181, and Sonnenberg, supra. The court in Wayta concisely explained why
allowing the prosecution broad discretion is necessary:
“This broad discretion rests largely on the recognition that the decision to prosecute is
particularly ill-suited to judicial review. Such factors as the strength of the case, the
prosecution's general deterrence value, the Government's enforcement priorities, and the
case's relationship to the Government's overall enforcement plan are not readily
susceptible to the kind of analysis the courts are competent to undertake. Judicial
supervision in this area, moreover, entails systemic costs of particular concern.
Examining the basis of a prosecution delays the criminal proceeding, threatens to chill
law enforcement by subjecting the prosecutor's motives and decision making to outside
6
Appellee asks us not to apply the clear ruling of Laramie by distinguishing the facts of that case from the facts of this case. We do not agree
with this approach.
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inquiry, and may undermine prosecutorial effectiveness by revealing the Government's
enforcement policy. All these are substantial concerns that make the courts properly
hesitant to examine the decision whether to prosecute.” Wayta v. United States, 608
(1985) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)).
In CCT v. Boyd, 10 CCAR 08 (2009) we said:
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 p.23, 2 CTCR 49, 24
Ind.Lw.Rptr. 6181 (1997), and Sonnenberg v. Colville Tribal Court, at p. 16. 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.
We find the Trial Court judge abused her discretion in ordering the Tribes to proceed with
prosecuting its case. Accordingly, we VACATE that order in its entirety.
The issue whether the Trial Court judge can “estop” the Tribes from introducing at trial evidence
obtained subsequent to the pre-trial hearing is rendered moot by our decision.
This matter is remanded to the Trial Court for proceedings consistent with this decision.
Mariah FRANK, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP16-002, 7 CTCR 07
13 CCAR 10
[Richard Lee, Office of Tribal Public Defender for Appellant.
Jared Cobell, Office of the Prosecuting Attorney for Appellee.
Trial Court Case No. CR-2015-38164]
Decided August 12, 2016.
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Michael Taylor
Nelson, J
The appellant, Mariah Frank, was charged and convicted of various crimes in three separate
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proceedings with three separate case numbers. Sentencing for all convictions were combined into one
criminal proceeding in which she was sentenced to consecutive terms of incarceration, the total of which
exceeded one year.
The issue on appeal is whether the consecutive sentences imposed during one criminal
proceeding violate the requirements of the Tribal Law and Order Act of 2010. For the reasons set forth
below we hold that the Trial Court erred in its imposing, in a single criminal proceeding, consecutive
sentences which exceed one year.
STANDARD OF REVIEW
The material facts of these cases are not disputed for the purpose of this appeal. The issues are
entirely those of law. Accordingly, the standard of review is de novo. CCT v. Naff, 2 CCAR 50, 2 CTCR
08, 22 ILR 6032 (1995), Wiley et al. v. CCT, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059 (1995).
FACTS
Mariah Frank was charged with criminal violations in three separate cases 7, to wit:
[1] CR 2015-38164 Receiving Stolen Property, which occurred on August 22, 2015;
[2] CR 2015-38204 Attempting to Elude a Pursuing Police Vehicle; Reckless Driving;
Obstructing Justice; Theft; and Unauthorized Use of a Vehicle, all of which occurred on
October 26, 2015; and
[3] CR 2015-38205 Theft, which occurred on August 10, 2015.
On January 14, 2016, Ms. Frank pleaded guilty to each charge in each case. Sentencing for all
three cases occurred during one criminal proceeding.
In Case No. CR 2015-38164, Receiving Stolen Property, she was sentenced to 180 days
incarceration with 0 days suspended. The Order noted that the sentence was consecutive to
those imposed in CR 2015-38204 and CR 2015-38205.
In Case No. 2015-38204, she was sentenced in each of the five counts to 360 days incarceration
with 180 days suspended. The sentences were concurrent in this case, but consecutive to those
imposed in the other two cases.
In Case No. 2015-38205, she was sentenced to 180 days incarceration with 180 days suspended,
7
The Notice of Appeal listed only one case, CR-2015-38164. However, the issue before us involves all three cases therefore we are including
them in this Opinion.
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consecutive to the other two cases.
The total number of days Ms. Frank was sentenced to during this proceeding was 540 days which
is in excess of one year.
DISCUSSION
The Tribal Law and Order Act of 2010, U.S.C. . 3201 et seq., prohibits tribal courts from
imposing sentences in one criminal proceeding to more than one year unless certain requirements are
met. One of these requirements is that an evidence code be extant within the tribe’s legal structure.
U.S.C. 1302(c).
At the time of sentencing in this matter, the Confederated Tribes of the Colville Reservation had
not enacted an evidence code and this Court had not adopted one. Therefore, the sentencing of Mariah
Frank, in one criminal proceeding, to more than one year, was in violation of the Tribal Law and Order
Act.8
Accordingly, the foregoing sentences imposed in the aforementioned cases are VACATED and
the matters remanded to the Trial Court for re-sentencing in accordance with sentencing procedures prior
to our holding in Desautel/Randall v. CCT, 13 CCAR 03, 7 CTCR 07 (2016).
John Paul MARTINEZ, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee,
Case No. AP16-001, 7 CTCR 08
13 CCAR 12
[David Stevens, Office of Tribal Public Defender for Appellant.
Wes Meyring, Office of the Prosecuting Attorney for Appellee.
Trial Court Case No. CR-22015-38192]
Decided September 1, 2016.
8
We note that subsequent to the sentencing of Ms. Frank, this court adopted the Federal Rules of Evidence as the evidence code to be
used in this Court. See Desautel/Randall v. CCT, 13 CCAR 03, 7 CTCR 07 (2016).
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Before Chief Justice Anita Dupris, Justice Dennis L. Nelson and Justice Michael Taylor
Nelson, J
The Appellant, John Paul Martinez, was found guilty of two counts of Battery DV.
He was sentenced to three hundred sixty days incarceration with one hundred eighty days
suspended for each count with the sentences to be served consecutively. The total sentence was
seven hundred twenty days incarceration with three hundred sixty days suspended.
The first issue on appeal is whether the consecutive sentences imposed during one
criminal proceeding violate the requirements of the Tribal Law and Order Act of 2010. For the
reasons set forth below we hold that the Trial Court erred in its imposition, in a single criminal
proceeding, of consecutive sentences which exceed one year.
The second issue on appeal is whether the sentencing judge was qualified under the
Tribal Law and Order Act of 2010 to impose a sentence which exceeded one year in length.
STANDARD OF REVIEW
The material facts of these cases are not disputed for the purpose of this appeal. The
issues are entirely those of law. Accordingly, the standard of review is de novo. CCT v. Naff, 2
CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995), Wiley et al. v. CCT, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059
(1995).
FACTS
John Paul Martinez was charged in one criminal proceeding with one count of Robbery
and two counts of Battery DV.
The Robbery count was dismissed with prejudice and he
pleaded guilty to the two counts of Battery DV.
He was sentenced on the two counts of Battery DV to three hundred sixty days
incarceration with one hundred eighty days suspended with the sentences to be served
consecutively.
A sentence includes the suspended time of incarceration. Best v. CCT, 6
CTCR 23, 12 CCAR 01 (2015). Thus, the total number of days Mr. Martinez was sentenced to
during this proceeding was seven hundred twenty days which is in excess of one year.
The judge who sentenced Mr. Martinez passed the Colville Tribal Bar Examination and
has attended several classes at the National Judicial College in Reno, Nevada.
Among these
classes are Search, Seizure, and Criminal Procedure. She holds a Tribal Judicial Skills
Certificate issued by the National Judicial College.
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DISCUSSION
1. Whether imposition of a sentence of seven hundred twenty days violated the provisions of
the Tribal Law and Order Act of 2010.
The Tribal Law and Order Act of 2010, U.S.C. . 3201 et seq., prohibits tribal courts from
imposing sentences in one criminal proceeding to more than one year unless certain
requirements are met.
One of these requirements is that an evidence code be extant within
the tribe’s legal structure. U.S.C. 1302(c).
At the time of sentencing in this matter, the Confederated Tribes of the Colville
Reservation had not enacted an evidence code and this court had not adopted one. Therefore,
the sentencing of John Paul Martinez, in one criminal proceeding, to more than one year, was in
violation of the Tribal Law and Order Act.9 The matter should be remanded for re-sentencing.
2. Whether the sentencing judge was qualified to impose a sentence in excess of one year.
Having determined that sentencing in this matter should not exceed one year, we find
this issue to be moot. The sentencing judge, whoever that may be, must not impose a sentence
in excess of one year. Accordingly, whether he or she is qualified to impose a sentence in
excess of one year is no longer relevant in this matter.
Therefore, we order the total sentence imposed herein VACATED and the matter
remanded to the trial court for re-sentencing in accordance with sentencing procedures prior to
our holding in Desautel/Randall v. CCT, AP 15-011, AP 15- 016.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Lucretia JAMES, Appellee.
Case No. AP15-002, 7 CTCR 09
13 CCAR 14
[Jacqueline Finley, Office of Prosecuting Attorney, for Appellant.
9
We note that subsequent to the sentencing of Mr. Martinez, this court adopted the Federal Rules of Evidence as the evidence code to
be used in this court.
See Desautel/Randall v. CCT, AP 15-011, AP 15-016.
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Dave Stevens, Office of Public Defender, for Appellee.
Trial Court Case No. CR-2015-38031]
Decided January 30, 2017
Before Chief Justice Anita Dupris, Justice Dave Bonga, and Justice Dennis L. Nelson
Procedural History
On January 25, 2015 an officer of the Colville Tribal Police Department issued a citation
complaint to the defendant/appellee, Lucretia James (James) on the charge of Driving While
Suspended in the Third Degree. The citation complaint mandated James appear at the Colville
Tribal Court for an arraignment hearing on the citation on February 3, 2015, at 1:00 p.m.
James appeared on February 3, 2015 as ordered. The Tribes, through its Tribal
Prosecutor’s Office (Appellant herein) was not ready for the arraignment hearing at which
James appeared as directed by her citation complaint. It appears the Prosecutor attempted to
discuss the matter with James at the time of the hearing, and had not filed the original citation
complaint nor a criminal citation on the charge before the hearing. Apparently James had since
obtained a valid driver’s license.
The Court asked for the original citation complaint provided to Appellant by the citing
officer. The Prosecutor out-right refused to give it to the Court, arguing to the Court that it was
abusing its discretion.10 James provided her copy of the citation complaint to the Court and
asked that the case be dismissed because Appellant was not ready to proceed. The Court gave
Appellant 10 minutes to either provide the original citation complaint or file a criminal
complaint. Again Appellant refused to comply with the Court’s directives, after which the
Court used James copy of the citation complaint to hear the case and dismissed it with
prejudice. From these orders Appellant filed a timely appeal.
STANDARD OF REVIEW
The issues herein are questions of law. There are no material issues of fact to decide. We
review de novo. CCT v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6059 (1995).
10 Appellant is encouraged to review its rules of conduct and ethics, as well as the contempt statutes. It may disagree with a judge,
but unless the conduct requested would put someone in harms way, to out-right refuse a directive of a judge could make a person
liable for contempt. Arguing that the judge is abusing its discretion is a question for the Court of Appeals, and does not justify
contemptuous behavior in Court.
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ISSUE
1.
Did the Court abuse its discretion in proceeding with a hearing on the charge of
Driving While Suspended in the Third Degree against Appellee when all that was
available to him was Appellee’s copy of the original citation complaint in the
possession of Appellant?11
The Court, in its written Order dated February 5, 2015, aptly set out the controlling statutes
in this matter. First, all criminal proceedings are initiated by a complaint. CTLOC § 2-1-30.
Next, a completed citation complaint (citation hereinafter) by a police officer serves as a
complaint for purposes of prosecuting a charge in Tribal Court. CTLOC § 2-1-72. There is no
statutory section which recognizes the practice and policy of Appellant’s office to supervene on
the citation a requirement that it can only be filed after a prosecutorial review.
Appellant’s arguments rest on the prevailing practices and policies of the Prosecutors’
Office, which in this case, create an untenable situation for Appellee. She was mandated by a
citation, which according to the law requires her attendance at a specific date and time before
the Court, to appear on February 3, 2015. The practices and policies of the Prosecutor’s Office
dictate that they will not file any citation without first reviewing it and the officer’s statement
of probable cause. Appellant points out, in support of prosecutorial review, that the citation
shows that it had been referred to the Prosecutors’ Office. The citation also states a copy was
provided to the Court.
Appellant further argues that because of its practice to first review the citation before filing
it with the Court, and because it did not file it as of the time of the hearing, Appellee was under
no obligation to appear. Appellant gives no legal authority to this proposition nor how the
Appellee would know that she did not have to appear.
Appellant rests it’s theory on prosecutorial discretion, which has been long-recognized by
this Court. See, e.g., CCT v. Mellon, 8 CCAR 01 (2005), Stoneroad-Wolf v. CCT, 8 CCAR 84 (2006).
It cites CCT v. Stensgar, 11 CCAR 47 (2013), and CCT v. Boyd, 10 CCAR 08 (2009) as authority for
the proposition that the Court abused its discretion. Appellant argues the Court’s actions
violate separation of powers; that the Court overstepped its authority when it directed
11 Appellant initially appealed the dismissal with prejudice, but did not address this issue in its brief. Therefore we considered the
issue abandoned.
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Appellant to file the citation or a criminal complaint.
Stensgar and Boyd are distinguishable from this case. In Stensgar the defendants were
arrested, bail set, and a notice to appear on the issue of bail was provided to them. On the date
of the hearing the Prosecutor’s Office had not issued a criminal complaint yet; there was no
citation complaint provided. Without a complaint, a criminal proceeding had not been initiated,
CTC § 2-1-30, so there was no legal proceeding to dismiss (other than, perhaps, the bail issue).
In Boyd the defendant had been arrested and had been in jail only 24 hours of the 72 the Tribes
is allowed to hold a defendant before initiating charges, that is a criminal complaint. Again,
there was no legal proceeding to dismiss in that there was no complaint filed.
In this case, a criminal proceeding was initiated when the police officer issued Appellant a
citation, which, under the law, is considered a valid criminal complaint. Appellant confuses its
practices and policies of filing complaints with what the law is, and it appears that at least in
this instance, its practices and policies are at cross-purposes with citation complaints. The
statutes are unambiguous: a criminal case is initiated once an officer hands a defendant a
completed citation with a mandatory appearance date and time.
Prosecutorial discretion is not boundless; it comes with prosecutorial responsibility to
ensure that all citation complaints are timely filed with the Court. As stated earlier, there is no
statutory authority to allow Appellant’s office to ignore the plain language of the law: a citation
complaint initiates a criminal proceeding.
The Court did not abuse its discretion when it addressed how to handle a case in which the
defendant has complied with a valid citation, and Appellant’s office has failed to address the
complaint in a timely manner. We so hold.
The Trial Court’s decision is AFFIRMED and this matter is remanded for actions consistent
with this Opinion.
ERB CORPORATION, Appellant,
vs.
Robert LOUIE, et al., Appellees.
Case No. AP04-001, 7 CTCR 10
13 CCAR 17
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[R. John Sloan, Attorney, for Appellant.
Theresa M. Thin Elk, Office of Reservation Attorney, for Appellee.
Trial Court Case No. CV-OC-2003-23122]
Dupris, CJ, for the Court
PREFACE
This is an old appellate case, initiated in 2004. The oral arguments were held at Gonzaga
School of Law before Chief Justice Anita Dupris, Associate Justice Howard E. Stewart and
Associate Justice Earl L. McGeoghegan, The oral record taken by the Law School was not given
to the Court directly after the hearing and was subsequently lost. The Panel thus did not have a
record of the oral arguments to review, so had to rely on memory and written notes. Over the
years, the case was put on the back burner, for several reasons. The three justices discussed it at
different times but never came to a resolution on the draft of the opinion, although we all
decided what we wanted to rule after oral arguments. At one point, Justice McGeoghegan was
going to attempt a draft, but it never came to fruition. Our decision, made before we lost both
Justice McGeoghean and Justice Stewart, is embodied in this opinion. This opinion reflects the
spirit of our discussions and, because of the length of time it took to issue it, does render the
issue moot. I apologize.
PROCEDURAL HISTORY
In 1999 Robert Erb (Appellant or Erb) established the Erb Corporation (EC) under the
Colville Tribal Law and Order Code (CTLOC), Chapter 10. He was the sole owner; it was a
100% Indian-owned business. Contemporaneous with this business, he was part owner of Cates
and Erb Corporation (C&EC), a TERO certified 60% Indian-owned business. The EC did
business in the timber industry; the C&EC did construction business.
On September 29, 2002, the TERO director, Bob Louie (Director/Appellee), withdrew
TERO certification of the EC as a 100% Indian-owned business finding that it was just a front
for C&EC. Erb appealed to the TERO Commission (Commission). After a hearing on the appeal
on February 13, 2003, the Commission found it was “a close case” and affirmed the Director’s
decision to decertify. Erb appealed the administrative decision to the Tribal Court.
On January 26, 2004, the Tribal Court affirmed the Commission’s decision, without
entering findings of fact and conclusions of law. This appeal ensued, and briefing was
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scheduled through July 2004. Oral arguments were held August 25, 2004 at the Gonzaga School
of Law Barbieri Courtroom.
ISSUE
Appellant asks us to review the issue of whether the Trial Court acted arbitrarily,
capriciously, and contrary to the law. He cites Washington State case law as authority. After a
review of our case law, and of the record and briefs submitted, this Court finds that the issue to
decide is: Did the Trial Court err in affirming the administrative decision of the TERO
Commission based on the facts and law of the case?
STANDARD OF REVIEW
It is long-settled law, and it was so in 2004, that questions of law are reviewed de novo,
questions of fact under the abuse of discretion standard, and mixed questions of law and fact
under either one, depending on where the interests of justice are better served, in the Trial
Court or the Court of Appeals. CCT v. Naff, 2 CCAR 50, 2 CTCR 08 (1995). Based on the record
and the applicable law, we find the interests of justice are better served in the Court of Appeals
and review de novo.
FACTS
The undisputed facts are that the EC was incorporated in 1999 under the laws of the
Tribes, CTLOC Chapter 10, for the purpose of conducting business in the timber industry. EC
was given a 100% Indian-owned Business (IOB) designation by TERO because Erb, a member
of the Colville Tribes, was the sole owner and he complied with all of the conditions precedent
to such a designation. For example, all the corporate shares were in Erb’s name, as sole owner;
all the Board members were CCT members; the EC had articles of incorporation and requisite
licenses; and he maintained the required Compliance and Utilization Plan for each job he did,
as required by the TERO Ordinance. Also, his employees were paid only from EC funds.
The TERO Director found cause to decertify EC based on his belief that the EC and the
C&EC were inextricably tied together in their use of employees and equipment, which
appeared to give the advantages of a 100% IOB to a lesser-priority business. C&EC was
designated as a 60% IOB because it was partly owned by a non-Indian.
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The Commission, after hearing testimony from, inter alia, Erb, his secretary Cox, Director
Louie, and two compliance officers, Bessette and LaPlante, and after reviewing the documents
submitted by Erb (e.g. licenses, articles of corporation, work documents, etc.) upheld the
Director’s decision to decertify, finding that it was “a close case.”
DISCUSSION
A de novo review necessitates a review of all of the evidence presented to the fact-finder,
here the Trial Court, and what the Judge reviewed from the Commission’s hearing. This Court
must decide if, based on a full review, whether a reasonable person would find the Trial Court
had sufficient evidence before it to support its legal findings. As pointed out by Appellee, this
Court does not substitute its judgment for that of the Trial Judge if the evidence supports a
decision contrary to what this Court would find, as long as the Trial Court’s decision is
“plausible in light of the record in its entirety...” Hoffman v. CCT, 4 CCAR 04, 2 CTCR 37 (1997).
We find the Trial Court did not have sufficient evidence to uphold the decertification.
The burden of proving non-compliance by a preponderance of the evidence is on TERO.
CTLOC § 10-3-5(d). The Commission found that the EC was in the sole ownership of Erb, and
that Colville tribal members, Erb’s family comprising the Board with Erb, exercised 100%
management and supervisory control of the day-to-day operations of the EC. These are the two
(2) requirements to meet when asking for 100% IOB certification. CTLOC § 10-3-4(a)(1).
Surprisingly, the Trial Court found for the Commission holding EC did not comply with this
section of the TERO Ordinance.
The Commission found, however, that EC did not meet the conditions of CTLOC §
10-03-4(b). This section requires that the IOB “must establish that they provided real value for
the stated ownership interest” and that “there is a good reason to believe that arrangement
would have been entered into even if there were not an Indian preference program.” The
Commission has appeared to shift the burden of proof to Erb on those conditions with little or
no evidence, other than the suspicions of the Director that the EC and C&EC worked too closely
together. It speaks of probabilities and potential violations to support its decision, not concrete
facts.
The Trial Court based its decision, it appears, on accepting as fact without further inquiry
the conclusions of the Commission that the EC and C&EC intermingled business to the extent it
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violated the TERO ordinance. We do not have Findings of Fact and Conclusions of Law to
review the basis of the Judge’s decision on these issues.
The Trial Court reached the legal conclusion that EC violated the TERO Ordinance by both
corporations employing some of the same employees for some jobs, EC leasing expensive
equipment from C&EC, and sharing an office and secretarial services. The undisputed evidence
before the Commission is that some of the decisions Erb made were based on sound business
reasons. For example, he leased C&EC equipment because if he had to buy it or lease it
elsewhere the cost would be prohibitive; and some of the employees in the construction
business had valuable skills in the timber business too. All finances were kept separate between
the two corporations, and Erb always had a Compliance and Utilization Plan for all of its jobs.
Erb has several years of experience in the timber trade. His background supports a finding
that he offered “real value” for his ownership. It also supports a finding that he could have a
real timber business, based on his experience and background, even without TERO. The burden
of proving otherwise first rested on the Commission’s shoulders. There are no findings either in
the Commission’s decision nor in the Trial Court’s decision that show otherwise.
Appellee’s argument that we give deference to the decision of an administrative body
because it holds the expertise in the field does not go unnoticed. Appellee argues the abuse of
discretion standard. This has already been addressed and we have found there are both
questions of law (e.g. did the Commission apply an erroneous standard of review, as well as the
Trial Court also applying the wrong standard of review), and questions of fact. For these
reasons an abuse of discretion standard does not apply here.
The Judge failed to review the whole record with an independent eye as to what evidence
supported the Commission’s decision, and the adequacy of the evidence. Again, we point out
that the Judge held Erb violated the requirements of establishing a 100% IOB, when in fact the
Commission found the exact opposite. The record of the Commission’s hearing shows that the
allegations were based on more speculation and probabilities than concrete evidence, which
does not meet a preponderance of the evidence standard. Had the Trial Court Judge made an
independent review of the evidence this would have become evident.
Based on the foregoing, this Court holds that the Trial Court erred in upholding the
decertification of EC’s designation as a 100% IOB, and the Trial Court’s Order of January 26,
2004, is reversed. This matter is remanded to the Trial Court for action consistent with this
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Order.
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COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Blanche DOGSKIN, Appellee.
Case No. AP11-012. 7 CTCR 11
13 CCAR 22
[Melissa Simonsen, Office of Prosecuting Attorney, for Appellant.
Daryl Rodrigues, Office of the Public Defender, for Appellee.
Trial Court Case Number CR-2012-33118]
Hearing held September 16, 2011. Decision entered March 6, 2017.
Before Chief Justice Anita Dupris, Justice David C. Bonga and Justice Dennis L. Nelson.
Dupris, CJ, for the Panel.
PROCEDURAL SUMMARY
On April 12, 2010, Blanche Dogskin (Appellee) was criminally charged with Hit and Run
Unattended , CTLOC §§ 3-3-3 and 3-3-1, incorporating by reference RCW 46.52.010, and
Driving While License Suspended or Revoked, CTLOC § 3-3-5, both charges allegedly
occurring on March 29, 2010. Prior to the jury being impaneled, Appellee made a motion in
limine, asking the Court to restrict Appellant’s evidence to exclude any testimony regarding a
police surveillance tape which, at the time of trial, had been automatically erased.
Appellant had objected to a hearing on the motion, alleging it had not received adequate
notice or copies of the brief submitted by Appellee. By an Order dated October 28, 2010, the
Trial Court granted the motion and dismissed the case, too. Appellant immediately appealed.
The Trial Court did not preserve its record of the hearing on the motion, so we reversed and
remanded to the Trial Court for a new hearing in order to preserve a record of the motion and
arguments.
On remand the Trial Court ordered briefing and scheduled a new hearing on the motion
for May 5, 2011. The record shows Appellant received notice of the hearing but did not appear.
The Court allowed Appellee/Defendant to present her motion again, and reissued its order
granting the motion and dismissing the case with prejudice. Appellant timely appealed.
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ISSUES
Appellant states two issues:
1. Were Appellee/Defendant’s due process rights violated when the police videotape
was not preserved?
2. Was a dismissal with prejudice appropriate in this case?
STANDARD OF REVIEW
Issues of law are reviewed de novo, issues of fact under a clearly erroneous standard, and
mixed questions of law and fact under either, depending on which Court’s review better
serves the administration of justice. CCT v. Naff, 5 CCAR 50 (1995). Both issues are questions of
law, to be reviewed de novo.
DISCUSSION
1. Were Appellee/Defendant’s due process rights violated when the police videotape
was not preserved?
Appellee presented her objection to any use of an erased police videotape, allegedly of
her driving and committing a hit and run unattended, as a motion to limit any testimony by
officers who said they reviewed the tape before it was automatically erased. She was really
moving to suppress evidence, not limit it. A motion in limine would not raise a due process
question.
We are asked to accept offers of proof of facts not yet on record to support the positions
of the parties herein. There has never been a fact-finding in this case. There is nothing in the
record to show that testimony was offered to a fact-finder, to prove the merits of the case,
regarding the erased tape. The arguments of the parties rest on suppositions.
A review of the Trial Court’s Order of Dismissal with Prejudice shows that the Judge
decided what the trial strategy of Appellant would have to have been in order to prove
Appellee guilty. She states:
“On the morning of the trial there were three means of proving the defendant’s
guilt:
a. First was to produce the tape alleged to contain video of the defendant backing into
another vehicle.
b. Second was to permit Tribal police Officers testify [sic] about what they had seen on
the now destroyed tape; and
c. Three to have Ms. Jonnie Bray testify regarding her claim to have seen the defendant
back into another vehicle.”
In making these findings the Judge usurped the role of the fact-finder, i.e. the jury, and made a
decision only the Prosecutor’s Office should make: how to present its evidence to prove its case.
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This approach of judicial activism is what we review for due process violations.
It is a Judge’s responsibility to manage the trial and ensure all parties are given an
adequate opportunity to present his or her case. Trial management does not mean, however,
making trial-strategy decisions before the evidence is presented. The Judge here was
responsible to weigh whether or not any references to an erased videotape presented an unfair
advantage to Appellant because Appellee did not have access to it.
If we were to assume the officers’ potential testimony as to the contents of the alleged
videotape were going to be presented, Appellee had the right and obligation to make
appropriate objections, such as, for example, hearsay. It is not the Court’s responsibility to
peremptorily rule before the matter is fully before it and the fact-finder, the jury.
The problem we have, however, is that both Appellant and Appellee argue the merits of
potential evidence that may be presented to support their arguments on due process violations
rather than address the procedural irregularities of the Court’s order. We find that any
substantive rulings on due process should be raised only after the case is fully litigated.
Otherwise it would appear that we are giving advisory opinions to the Trial Court. We so hold.
2. Was a dismissal with prejudice appropriate in this case?
We have ruled that, as a general rule, even though dismissals with prejudice are usually
granted after jeopardy attaches, they are also granted when the Trial Court finds either the
Tribes acted in bad faith or filed a frivolous charge, and/or after a balancing of public and
private interests, it is an appropriate dismissal. Campbell v. CCT, 8 CCAR 28 (2005); Swan v.
CCT, 7 CCAR 38 (2003); CCT v. Jack, 7 CCAR 33 (2003); Stensgar v. CCT, 2 CCAR 20 (1993).
The Trial Court entered a dismissal with prejudice in this case to show that it is “a
remedy which can provide a powerful disincentive to the government for mismanagement of
potentially exculpatory evidence and such a disincentive in this case is appropriate.” Order at
page 3. Appellant failed to appear at the hearing in which the Court was considering the
dismissal of the case. The record doesn’t reflect why it failed to appear.
We may extrapolate from the Court’s ruling that it was balancing public and private
interests in making its decision, although the Judge did not specifically reference any of the
standards we have set out regarding dismissals with prejudice. We find that sufficient
reasoning was provided by the Court, and affirm the dismissal.
CONCLUSION
The procedural irregularities do not rise to the level of a due process violation on
Appellant’ behalf. It appears Appellant did not fully participate in developing the issues at the
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trial level, not filing a brief nor attending the hearing on the matter. The Trial Court did not
commit reversible error in its dismissal with prejudice. We AFFIRM.
This matter is remanded to the Trial Court for action consistent with this Order.
Willard A. CARSON, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP16-012, 7 CTCR 12
13 CCAR 25
[Dave Stevens and Theresa Thin Elk, Office of Public Defender, for Appellant.
Wes Meyring, Office of Prosecuting Attorney, for Appellee.
Trial Court Case Number CR-2015-38174; CR-2015-38235; and CR-2016-39035]
Decided January 19, 2017.
Before Chief Justice Anita Dupris, Justice Denis L. Nelson, and Justice Michael Taylor
Taylor, J;
For the Court
1. PROCEEDINGS IN THE TRIAL COURT
On May 23, 2016, Mr. Carson pleaded to Trespass Buildings and two counts of Battery on case
CR-2015-38174. He was sentenced to 360 days in jail with 160 days suspended with all counts
concurrent to one another but consecutive to case CR-2015-38173 (DWLS/R) on which he was already
serving a sentence. Mr. Carson then immediately pleaded to DUI, DWLA, and Disobedience of a
Lawful Court Order on case CR-2015-38235. He was sentenced to 360 days with all counts concurrent
but the 360 days consecutive to his 360 days on CR-2015-38174 (Trespass and Batteries) he had been
sentenced to minutes before and the sentence he was already serving on CR-2015-38173 (DWLS/R). He
then proceeded directly to plead guilty to Bail Jumping on CR-2016-39035. He was sentenced to 90
days with 60 suspended consecutive to his sentence on CR-2015-38173 (DWLS/R) by the same judge
with the Tribes being represented by the same prosecutor on each case. He was represented by the same
public defender on each case. He objected that his sentencing was one criminal proceeding and that he
could not be sentenced to more than one year. He did not object to the sentences being consecutive to
CR-2015-38173 as that was a previous criminal proceeding. His exceptions to consecutive sentencing
on the other matters were noted.
2. STANDARD OF REVIEW
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The material facts of these cases are not disputed for the purpose of this appeal. The issues are
entirely those of law. Accordingly, the standard of review is de novo. CCT v. Naff, 2 CCAR 50, 2
CTCR 08, 22 ILR 6032 (1965), Wiley et al. v. CCT, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059.
3. ISSUES
A. On the date of the various proceedings below, which have been joined together this appeal,
was the Appellee not in compliance with provisions of the Indian Civil Rights Act (ICRA), 25 U.S.C. §
1301 et. seq., as amended by P.L. No 11-211 (2010); such non-compliance limiting the sentencing
authority of the Tribal Court to a maximum of one year?
B. Does the rule of lenity apply to the proceedings in this matter, because the federal courts apply
that rule in criminal proceedings and in this Appeal the Tribal Court must interpret a federal statute?
4. DISCUSSION
We find that (A) this Appeal, being fully briefed by the parties, is suitable for decision without
oral arguments; (B) that on the date of the proceedings below Appellee was compliant with those
provisions of ICRA (lack of published evidence rules) which Appellant raises as a basis for this Appeal;
and (C) that rule of lenity has been found inapplicable to proceedings in the Courts of the Appellee and
shall not be applied by the Court in this Appeal.
Appellant relies on our opinion in Desautel/Randall v. Colville Confederated Tribes, 13 CCAR
03, 7 CTCR 5 (2016) to argue that at the time of the proceedings below, the Tribes was not compliant
with ICRA as amended in 2010. In Desautel we held that, because the Tribes had not adopted and
published a generalized code of evidence, the Tribes was not in compliance with ICRA. In Desautel,
pursuant to Colville Tribal Code provisions and prior decisions of the Court, we acted to adopt the
Federal Rules of Evidence to all criminal proceedings before this Court. See also: Martinez v. CCT, 13
CCAR 12, 7 CTCR 08 (2016), at n. 1.
The opinion in Desautel was entered May 13, 2016, and a Motion for Reconsideration was filed
in this Court on May 19, 2016. Counsel for Appellant in this Appeal was also counsel for the Appellant
in Desautel and responded to the Motion for Reconsideration in Desautel. Thus, counsel for Appellant
was fully advised on the dates of proceedings appealed here, that a comprehensive code of criminal
evidence had been adopted by this Court for the Tribes.
In addition, as Appellant sets out in his brief, he is appealing his sentencing in three separate
criminal proceedings, opened by the Court under three different cause numbers and prosecuted
separately. In none of these cases he was sentenced to more than 360 days. We do not rely on the fact
of these clearly separate proceedings to deny relief to Appellant here, because we find that the Tribes, by
adoption of the Federal Rules of Evidence in Desautel prior to the date of the criminal trials in these
causes became compliant with the relevant provisions of the ICRA.
While it is important to the analysis of the application of the requirements in the ICRA to require
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that defendants in criminal proceedings have the opportunity to review criminal codes and evidence rules
prior to their appearance before the Court, in the circumstance of this Appeal, where counsel in Desautel
and here were and are identical, we find that this opportunity was substantially available.
B. Our finding that the Appellee on the date of the proceedings below was in compliance with
the relevant provisions of the ICRA renders a discussion of the issue of the application of the rule of
lenity moot. However, this Court has repeatedly found that the rule of lenity does not apply to
proceedings before the Courts of the Tribes. St. Peter v. CCT, 1 CTCR 75, 2 CCAR 2 (1993); Coleman
v. CCT, 2 CTCR 25, 3 CCAR 58 (1996).
We do not have a basis in this Appeal for reviewing our prior holdings.
For the reasons stated above the actions of the Trial Court and the sentences imposed in these
matters are affirmed.
Joe PEONE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP16-022 IA, 7 CTCR 13
13 CCAR 27
[Mark Carroll, Attorney, for Appellant.
Christopher Kerley, Attorney, for Appellee.
Trial Court Case No. CV-CU-2015-38307]
Decided March 10, 2017.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Michael Taylor
Dupris, CJ.
This matter is before the Court on an Interlocutory Appeal filed November 18, 2016,
regarding the denial of an Affidavit of Prejudice against a presiding judge, entered by a
reviewing judge on November 10, 2016. CTLOC § 1-1-143 provides that if a request to change a
judge is denied, the moving party has the right to an appeal of the issue immediately.
Appellant has filed a timely appeal.
LIMITED FACTS
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Appellant has two (2) separate causes of action before the Trial Court regarding his
termination from his position with the Tribes’ Fish and Wildlife Department. The first cause of
action was filed in 2013, and from a review of the case, it appears it is still waiting for an
administrative hearing on the issue of employment termination, and has been stayed in Tribal
Court. The second cause of action, filed in 2015, based again on Appellant’s employment
termination, and alleging violations of the Tribes’ Civil Rights Statute, CTLOC Chapter 1-5, is
pending, and is the basis for the case herein.
On October 24, 2016, the Trial Court held a status hearing on the 2015 case. After a ½
hour hearing, the Presiding Judge entered an order extending the stay in the case and allowing
both parties to file additional paperwork to move the case along. Appellant filed an Affidavit of
Prejudice against the Presiding Judge, alleging he evinced prejudice against Appellant in the
status hearing by his comments. He felt the Presiding Judge had made statements which could
show he had already made his decision in how he was going to rule in the case, to the
detriment of Appellant.
The Reviewing Judge reviewed the affidavit, the recording of the status hearing, and the
pleadings submitted by the parties regarding the request to remove the Presiding Judge from
the case. By Order dated November 10, 2016, she held that the evidence was insufficient, and
that the request to remove the Presiding Judge was denied. It is this Order that is appealed.
Based on the reasoning below, we find the Reviewing Judge did not commit reversible
error, and affirm the decision.
ISSUE
Did the Reviewing Judge err in denying a motion and affidavit of prejudice based on the record
and law before her?
STANDARD OF REVIEW
We review the Reviewing Judge’s order under the clearly erroneous standard. Louie v.
CCT, 7 CCAR 46 (2004). We will review the facts the Reviewing Judge had before her in order
to determine if there is a sufficient basis for her ruling. We do not substitute our judgment for
hers if we disagree, but give deference to her findings unless clear error is found.
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DISCUSSION
We have reviewed the recording of the status hearing of October 24, 2016, held before
the Presiding Judge, upon which Appellant relies to show the Presiding Judge’s bias and
prejudice. The Presiding Judge started the hearing exhibiting obvious frustration that the case
was still on the docket. He thumped the cases (i.e. which could be heard plainly on the record),
and made statements to the effect that the case, and its similar case filed in 2013, dealt with the
same subject matter, and was on the docket too long. Appellant stated on record that he and
Appellee had an agreed order to extend the stay in the case, to which the Presiding Judge stated
he wasn’t inclined to grant the extension.
It appeared to us that the Presiding Judge was almost thinking out loud about what he
considered the law to be of the case, eg. sovereign immunity, and his disappointment that
Appellee had not yet filed a motion to dismiss based on the sovereign immunity defense. Over
the next ½ hour he seemed to dither on about the posture of the case, what the parties needed
to file (Appellant an amended complaint, Appellee a motion to dismiss), and how much time
the case was taking up on the docket.
First, we find that the Presiding Judge’s “thinking out loud” approach to the hearing is
off-putting, and could be misconstrued as evincing a bias. There are no court rules or statutes
regarding what is to happen at a status hearing. Common sense would dictate it as a time when
both parties present the current status of the case to the Court, and the Court would issue an
order on what is to happen next.
The Reviewing Judge, under the rules of law established by our case law, has discretion
to decide if the request to remove a presiding judge from the case is warranted; it is not an
automatic decision, but is based on the particular facts of each case. St. Peter v. CCT, 1 CCAR 1
(1993), In Re L.S.-L & R.S.-L, minors, v. CCT, 5 CCAR 46 (2001). She heard the same recording of
the October 24, 2016 hearing as we did.
The Presiding Judge’s approach to the hearing leads us to caution the Trial Court judges
regarding their roles as tribal leaders. In Sonnenberg v. Colville Tribal Court, 5 CCAR 9 (1999)
we discussed the leadership roles of our judges; we said:
In our court system the cultural approach has been eroded and largely replaced
by the non-Indian court system. Because of this, it is the tribal judge's heightened
responsibility to maintain the cultural milieu of the proceedings before it. The
judge is a tribal leader, who must make day-to-day decisions for the good of the
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whole community, while at the same time maintaining the integrity of the case
for those individuals before him.... It is incumbent upon the tribal judges and
justices to sustain the attitude of trust and respect in their leadership role in the
Indian community in order to maintain the community's confidence in the court
system.
The expectation is that our judges must at all times appear fair and impartial; this is
measured, in important part, by whether the parties feel they are receiving a fair hearing and
that their positions are listened to and dealt with impartially, and not what the judge feels he
must share on the record regarding his feelings on the status of the case. If a judge cannot act
accordingly, he or she has a duty both culturally and ethically to step away from the case.
In this case, although the Presiding Judge seemed to use the time to express his
frustrations regarding the case, he did not aim his remarks personally at Appellant or
Appellant’s counsel. His discourse was a statement of the law of sovereign immunity. He did
not make a pre-ruling on the issue; he raised it as an issue that will appear in the case. He also
advised Appellant that he could file an amended complaint. This is a fine line, but the
Reviewing Judge committed no clearly erroneous error in finding that the Presiding Judge’s
ramblings on the record rose to a level of being unfair or favoring Appellee in the case. We so
hold.
We hereby AFFIRM the trial court and REMAND for actions consistent with this
opinion.
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Valerie DESAUTEL, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Nathan DESAUTEL, MINORS, Appellees.
Case No. AP10-003, 7 CTCR,
13 CCAR 31
[Daryl Rodrigues, Office of Public Defender, for Appellant.
Melissa Simonsen, Office of Prosecuting Attorney, for Appellee CCT.
Mark Carroll, Spokesperson, for Appellee/Father Nathan Desautel.
Kathleen Hathaway, Office of Legal Services, for the minors/Appellees.
Trial Court Case No. MI-2010-30000]
Decided March 10, 2017.
Before Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Earl L. McGeoghegan
PREFACE
This is an old case, and we recognize that it has more than likely been resolved
without our opinion at this point. The record we reviewed was voluminous, including
listening to the recording. We have since lost one of our members of the panel,
Associate Justice Earl L. McGeoghegan. He did participate in the initial discussions of
the case, however. Our apologies.
PROCEDURAL SUMMARY
In November, 2009, dependency petitions were filed in the Washington State
Superior Court in Ferry County on the two minor children of Valerie Desautel,
mother/Appellant (Appellant) and Nathan Desautel, father/Appellee. The Superior
Court Judge granted the Tribes’ Motion to Intervene and Transfer the cases to the Tribal
Court in December of 2009. The Tribal Court granted Appellee’s, CCT Children and
Family Services Program (CFS), motion to amend the Petition for
Minor-in-Need-of-Care (MINOC) to include Appellant’s minor child from a different
relationship and a more detailed fact pattern.
Appellant and Appellee Desautel had been going through the State’s civil court
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in a custody action at least two (2) years prior to the dependency filings. The
adjudicatory hearings in the Tribal Court occurred between April 26, 2010 to May 7,
2010. The Court took in extensive testimonial and documentary evidence. The Court
entered its final Findings of Fact and Conclusions of Law, “Amended Order/Nunc Pro
Tunc Findings of Fact, Conclusions of Law, Order,” dated May 10, 2010, nunc pro tunc
to April 4, 2010. The Court found the children to be minors-in-need-of-care, and placed
two with their father, Appellee Desautel, and the other with a relative, not the mother.
The Court found all three children to be minors-in-need-of-care as to their mother, and
the two children of Appellee and Appellant to not be minors-in-need-of-care as to their
father, Appellee Desautel. Appellant filed a timely appeal challenging the findings of
dependency as well as the legal conclusions and orders thereto.
It is noted that in September, 2010, Appellee Desautel moved to dismiss the
appeal, stating Appellee had signed over temporary custody of their children to him in
a State Court proceeding. Appellant objected but no one asked for a hearing, thus the
issue was moot.
ISSUES
Although Appellant sets out seven (7) separate issues, they can be summed up in
three:
1. Did the Court err by not having a competency hearing regarding minor
children testifying, and regarding the admission of a minor’s statements
regarding the allegations of sexual abuse?
2. Did the Court err in finding clear, cogent and convincing evidence that the
three children were minors-in-need-of-care as to Appellant/mother and not
as to Appellee/father of two of them?
3. Was Appellant given due process in the manner in which the adjudicatory
hearings were held in light of the comments of the Judge regarding her
findings?
STANDARD OF REVIEW
Questions of law are reviewed de novo, and questions of fact under the clearly
erroneous standard. CCT v. Naff, 2 CCAR 50(1995). When the questions are a mixture
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of fact and law, we weigh whether justice favors the Court of Appeals or the Trial Court
to decide whether to review the whole record de novo. Id.
The question of law herein is regarding children’s testimony in child sexual
abuse cases. Appellant raises several factual challenges which necessitates a review of
the whole recorded record of the prolonged adjudicatory hearing. We find the first
issue will be reviewed de novo and because of the extensive record of the hearings, and
the first-hand experience of the Judge during the prolonged hearings, justice is better
served to review the facts under the clearly erroneous standard.
DISCUSSION
1. Did the Court err by not having a competency hearing regarding minor
children testifying, and regarding the admission of a minor’s statements
regarding the allegations of sexual abuse?
First, there is question of whether Appellant raised this argument at the Trial
Court, and, therefore Appellees argue, the matter is not ripe for appeal. We have
addressed competency and hearsay evidence issues once before in our Court. Bush v.
CCT, AP 90-13173, in which the CoA affirmed the Trial Court’s adoption, as guideline,
Washington State RCW 9A.44.120, which set out the parameters of when a child is
competent and when the child’s out-of-court statements could be used as evidence as an
exception to the hearsay rule. Bush was a criminal case, but is the only published
opinion of both the Trial Court and CoA of our rule of law. We hold the Trial Court did
not err.
2. Did the Court err in finding clear, cogent and convincing evidence that the
three children were minors-in-need-of-care as to Appellant/mother and not
as to Appellee/father of two of them?
In reviewing the facts under the clearly erroneous standard we do not substitute
our judgment for that of the Trial Courts, even if we would have ruled differently. We
review all of the evidence to decide if there is sufficient evidence to support the Trial
Court’s findings.
Appellant’s challenges to the findings of the Trial Court, e.g., whether Bradley
Michel’s presence and past history constituted a danger to the children, or whether
physical abuse and/or sexual abuse occurred in either parent’s custody, really are a
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challenge to how the Judge weighed the evidence presented. The credibility of any
witness or evidence is the sole province of the fact-finder. There was extensive
testimony on everyone’s behalf, both professional and personal. There is ample
evidence for the Judge to weigh and find as she did. We find no clearly erroneous
findings and conclusions. We so hold.
3. Was Appellant given due process in the manner in which the adjudicatory
hearings were held in light of the comments of the Judge regarding her
findings?
Appellant argues she wasn’t allowed to make her case to the Court regarding the
allegations of sexual abuse by Appellee Desautel, and that the Judge had made up her
mind before the conclusion of the case. Appellee aptly points out that the burden of
proof regarding whether the children were minors-in-need-of-care as to their father was
on the Tribes, not the mother. It appeared from a review of the record that at times the
parties inappropriately tried to morph this case into the civil custody case. The Judge, at
the conclusion of the Tribes’ case, found insufficient evidence as to the father, but did
not rule as to the mother at the time.
The Judge commented that she was going to start on her written decision, even
though Appellant hadn’t presented her case yet. As imprudent as the remark may have
been, it does not rise to the level of a due process violation. We so hold.
The Trial Court’s Order is hereby AFFIRMED. This case is remanded to the Trial
Court for action consistent with this Opinion and Order.
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CHILDREN & FAMILY SERVICES, Appellant,
vs.
Jonathan IBARRA, Jennifer IBARRA, and Minor Child, Appellees.
Case No. AP16-013, 7 CTCR 15
13 CCAR 35
[Curtis Slatina, Office of the Prosecuting Attorney, for Appellant.
Esther Milner, Spokesperson, for Appellee/Father.
Theresa Thin Elk, Office of Public Defender, for Appellee/Mother.
Jamie Edmonds, Office of Legal Services, for the Minor.
Trial Court Case No. MI-2013-33022]
Hearing held August 19, 2016. Decided April 20, 2017.
Before Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Rebecca M. Baker
Bass, J, for the Panel.
The Trial Court issued two (2) Subpoenas Duces Tecum (SDT) at the request of the
mother’s attorney in their Minor-In-Need of Care (MINOC) cases. The SDT’s asked generally
for documents in Appellant’s files. The Trial Court denied Appellant’s motions to quash the
SDT’s. The parties were informed at the Initial Hearing on August 19, 2016, that we would be
reversing and remanding the orders granting the SDT’s. The reasons for our rulings are set out
below.
COURSE OF PROCEEDINGS
The MINOC case has been on-going for approximately three (3) years. Appellee, Jennifer
Ibarra, made a request for discovery covering the same documents set forth in the SDT’s.
Appellee thought the discovery produced by Appellant in response to her request for discovery
was incomplete; this is the reason she filed two (2) SDT’s. The difference between the two (2)
SDT’s was that the second one requested more documents. Appellee used the phrase “et cetera”
to identify what she wanted Appellant to provide to her. The second SDT was signed and dated
by Appellant’s attorney. The Trial Court twice denied Appellant’s motions to quash the SDT’s,
without a hearing. Appellant filed its timely appeal.
ISSUES
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1. Is an SDT the proper remedy for an alleged failure to provide requested discovery ?
2. Can an SDT be issued without a hearing?
3. Were the SDT’s overly broad in the scope of the documents to be furnished?
STANDARD OF REVIEW
We review issues of law de novo. Davisson v. CCT, 11 CCAR 13 (2012). We review
questions of fact under the abuse of discretion standard. CCT v. Naff, 2 CCAR 50 (1995). If the
issues are mixed questions of law and fact, as in this case, we review the whole record de novo,
when we find the interests of justice are best served for the CoA to review de novo. We so find in
that there are no written rules governing discovery, so we must give direction to the Trial Court
and parties regarding future questions of discovery practices.
DISCUSSION
1. Is an SDT the proper remedy for an alleged failure to provide requested discovery?
There are no written rules in the Colville Tribal Law and Order Code (CTLOC)
governing discovery. Cases in our Court mention discovery, but do not identify any legal source
for it, define what discovery is, nor when it may be obtained. See, e.g., Gallagher v. Schrock, 9
CCAR 39 (2008), Gallagher v. Anderson, 5 CCAR 51 (2001). CTLOC § 1-1-144 provides that if
a course of proceeding is not specified in the Code, any suitable process or mode of proceeding
may be adopted which appears to be most conformable to the spirit of Tribal law. We find that,
relying on CTLOC § 1-1-144, the appropriate remedy for failure to comply with requested
discovery is to file a motion, and to be provided a hearing on the motion, to allow all parties to
present their arguments regarding the requested documents, and to give all parties due process.
An SDT is not necessary to provide a remedy on the facts of this case. We so hold.
2. Can an SDT be issued without a hearing?
The statutory law, CTLOC § 1-1-250 ( c), specifically states that within the SDT a
hearing is to be designated for which the documents covered in the SDT are to be brought for
consideration by the Court. No hearing was referenced in either SDT presented by Appellee to
the Court. Appellee argued that because the case was reviewed every three (3) months, and all
parties knew this, all parties should have assumed the hearing for which the documents were
requested was the next-scheduled review hearing. We do not agree. We find that a specific
hearing must be referenced in the SDT, with a specific date and time. The SDT’s issued herein
are legally deficient and must be quashed.
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3. Were the SDT’s overly broad in the scope of the documents to be furnished?
Although We have already ruled that the SDT’s were not the appropriate remedy for an
alleged failure to produce requested discovery, we are concerned about the broad scope of the
SDT’s issued in this case. The SDT’s appear to be a fishing expedition for anything in the
working files of Appellant that could be used for an unspecified purpose, rather than be tailored
to produce documents for a specific purpose to be used at a scheduled hearing. The parties and
the Trial Court are cautioned to use or issue only SDT’s and requests for discovery tailored with
specific reasons and purposes, and not for fishing expeditions. For example, the use of the term
“et cetera” after listing documents to be produced is inappropriate. It is not a legal term, and is
not definite enough for the responding party to respond to it.
CONCLUSION
Based on the foregoing, we find that the Trial Court erred in granting the STDs. We
reverse the Trial Court orders entered on June 23, 2016 and July 20, 2016 and remand this matter
to the Trial Court for action consistent with this Order.
LeRoy JERRED, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP16-018, 7 CTCR 16
13 CCAR 37
[Richard Lee and Dave Stevens, Office of Public Defender, for Appellant.
Weston Meyring, Office of Prosecuting Attorney, for Appellee.
Trial Court Case No. CR-2016-39092]
Decision made on briefs on April 12, 2017.
Before Presiding Justice David C. Bonga, Justice Dennis L. Nelson, and Justice Michael Taylor
Bonga, PJ
STANDARD OF REVIEW
We review findings of facts under the clearly erroneous standard, and errors of law de
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novo. Colville Confederated Tribes vs. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
FACTS
The facts of this case concern an alleged sale by the appellant, Leroy Jerred, of a flatbed
trailer to Mr. Jack Ferguson the biological nephew of the appellant’s ex-wife Jeanne Jerred.
The sale in question occurred after the divorce.
It was determined at trial that Mr. Jerred agreed to sell the flatbed trailer to Mr.
Ferguson for $950.00. On the day of the purported sale, October 9, 2015, Mr. Jerred delivered
the trailer to 20 Keller School Road in Keller, Washington that was a location that Mr. Ferguson
could retrieve the trailer. Mr. Ferguson was not present for delivery but Mr. Jerred received an
envelope in which Mr. Ferguson had placed a money order in the amount of $950.00. Mr.
Jerred insisted that the sale was to be a cash sale. Mr. Jerred took back the trailer and removed
it from 20 Keller School Road. Mr. Ferguson reported to the local law enforcement office on
October 13, 2015 that the trailer had been stolen by Mr. Jerred.
The Tribal Prosecutor’s office eventually filed a complaint against Mr. Jerred for two
counts. Count I was for Theft (Domestic Violence) and Count II for Malicious Mischief
(Domestic Violence). At Trial the jury found Mr. Jerred guilty of Count I for Theft with an
enhanced Domestic Violence sentence and not guilty for Count II. Mr. Jerred was sentenced
by the Trial Court for the charge of Theft and the sentence was enhanced based upon the
Domestic Violence connection.
The appellant timely filed this appeal.
ISSUE
DID THE TRIAL COURT ERR WHEN IT DENIED APPELLANT’S/DEFENDANT’S
MOTION TO DISMISS THE DOMESTIC VIOLENCE ENHANCEMENT FOR THE
CHARGE OF THEFT?
DISCUSSION
It has been recognized by the federal government that domestic violence is and has been
a general problem that was addressed by the Congressional passage of the Violence Against
Women Act in 1994. The Confederated Tribes of the Colville Reservation (Tribes) adopted
similar legislation in March of 2005. The Tribes determined that domestic violence is contrary
to the interests of their people and their traditional values. The Tribes accordingly adopted
similar legislation.
For our purposes there is a need to examine and attempt to determine if there is a Tribal
definition for “extended family.”
Chapter 5-5 DOMESTIC AND FAMILY VIOLENCE CODE.
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13 CCAR ___
5-5-3 Definitions and Requirements…
(d) Domestic Violence means the occurrence of one or more of the following acts by
a family or household member,…
(4) Attempting to commit or committing any criminal offense under Colville
Tribal law against another family or household member.
(g)”Family or Household Members” include:
(1) Persons who are current or former spouses;…
(6) Persons who are a part of the extended family of the victim or abuser and
who commonly interact with the victim or abuser;…
The Tribal Court Judge determined that Mr. Ferguson was a member of the extended
Jerred family because Mr. Ferguson was the nephew of the former Mrs. Jerred, which would
have made Mr. Ferguson a nephew-in-law to the appellant, Leroy Jerred. The Court reasoned
that divorce did not mean an end to the extended family and therefore Mr. Ferguson should be
considered a member of the extended family. Under the Tribes’ Law and Order Code there is
not a definition of extended family so the Code directs that one may look to State law
definitions “[w]henever the meaning of a term used in this code is not clear on its face or in the
context of the Code, such term shall have the meaning given to it by the laws of the state of
Washington, unless such meaning would undermine the underlying principles and purposes of
this Code. CTC 1-1-7(d) and (e).
The trial court judge accepted the term “extended family” as defined in the Washington
State Indian Child Welfare Act:
“Indian child’s family” or “extended family member” means an individual, defined
by the law or custom of the child’s tribe, as a relative of the child. If the child’s tribe
does not identify such individuals by law or custom, the term means an adult who is
the Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law,
sister-in-law, niece, nephew, first or second cousin, or stepparent, even following
termination of the marriage. RCW 13.38.040(8).
The Trial Judge stated:
The court’s determination goes solely to the question of whether, as a matter of law,
the Defendant and alleged victim were no longer extended family members at the
time of the alleged crimes. The court concludes that the termination of the
marriage between Jeanne Jerred and the Defendant Leroy Jerred did not have the
legal effect of terminating the “extended family” relationship between the
Defendant and the alleged victim.
However the Panel does not agree with the interpretation by the Trial Court that Mr.
Ferguson was a member of the extended Jerred family under Washington law. The State
statute RCW 13.38.040(8) that was relied upon by the Tribal Judge sets out which specific in-law
relationships count to be considered by the state to be part of the native extended family and
are limited to brother-in-law and sister-in-law, but not to a nephew-in-law. The state statutory
definitions run directly into the basic concept that if a statute sets out and lists specifically what
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it covers, those things that are not included in the list are not included.
It should also be noted that the Trial Court did not reflect upon an opinion filed by a
panel of the Colville Tribal Court of Appeals on February 4, 2016. The opinion was issued in
the dissolution of the marriage between Jeanne Jerred and the appellant in this case, Leroy
Jerred, Colville Tribal Court case number AP15-018 and AP 15-019. A statement in the final
decision by that Appellate Panel is noteworthy to this case as it stated:
The goal of all dissolutions should be to separate the parties as completely as
possible, this is doubly true when there is a history of violence and abuse…”
The issue on appeal in AP15-018, AP15-019 was whether or not the Trial Court had
properly ordered the payment of the share of Mr. Jerred’s retirement annuity by placing the
burden of collecting the share on Mrs. Jerred. In order to receive the share Mrs. Jerred was to
contact her former husband each month for payment. The attorney for the Appellee, Mrs.
Jerred, had argued that it was unfair due to the contentious nature of the dissolution to subject
Mrs. Jerred to monthly contact with Mr. Jerred to collect her fair share that had been awarded
by the Trial court, when the Trial Court could have directed the Civil Service Retirement
System to send Mrs. Jerred her court awarded share of the annuity. The Appellate Panel
agreed with Appellee’s argument and directed the Trial Court to enter the appropriate Order to
the Federal Government for direct distribution of the Retirement funds to Mrs. Jerred so that
her contact with Mr. Jerred would be limited in nature.
This Appellate Panel acknowledges that under the Tribes Domestic Violence Act there is
not a definition of “extended family” and that the Trial Court appropriately looked to
Washington state law. It is common that a definition for extended family for Tribal members
is complicated and often times creates a situation where it is difficult to understand and
identify who and how members are related. The inherent authority of a Tribe to determine
and define who are members of their extended family, appears to the Panel, as a needed
exercise of political thought and decision. Without that self-determination it appears that
non-members will continue to define what an “extended family” is for the Tribes.
Thus the Trial Court in this case was in error for stating:
The court concludes that the termination of the marriage between Jeanne Jerred and
the Defendant did not have the legal effect of terminating the “extended family”
relationship between the Defendant and the alleged victim.
Furthermore the Panel concludes that without an official Colville Business Committee
definition of “extended family” many decisions may be forthcoming creating judge-made law.
It is hereby DECIDED that the decision of the Jury on Count I, Theft, is AFFIRMED.
The enhanced sentence for Domestic Violence is REVERSED and REMANDED for
resentencing.
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Ricard TUPLING, Appellant,
vs.
Cassandra KRUSE, Appellee.
Case No. AP14-027, 7 CTCR 17
13 CCAR 41
[The parties appeared in person and without representation.
Trial Court Case No. CV-CU-2013-36210]
Decided June 5, 2017. Dissent issued May 30, 2017
Before: Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Rebecca M. Baker
Dupris, CJ
SUMMARY
The custody issues in this case have been addressed by three (3) state courts, Okanogan,
Island County, and Snohomish County, and the Colville Tribal Courts through several different
hearings. The first filings regarding these parties was on September 9, 2013, in Okanogan
District Court by Kruse (Appellee), a non-Indian, who obtained an ex parte temporary
restraining order and temporary custody order (TRO) of the parties’ minor child, W.T. (child).
At the time of its filing all parties resided on the Colville Indian Reservation (Reservation).
One day after she obtained the Okanogan TRO, Appellee and the child moved to the
west side of the State. On that same date, September 10, 2013, Tupling (Appellant) filed for
custody of the minor in Tribal Court. There is nothing in the record that shows he notified the
Tribal Court of the Okanogan TRO. Appellant did not affect service of his custody pleadings on
Appellee until April 21, 2014, seven (7) months after he filed them.
On September 18, 2013, Appellee filed for custody in Snohomish Superior Court, and
received a TRO from that Court which, inter alia, restrained Appellant from removing the child
from its jurisdiction pending the final resolution of the matter.
On September 19, 2013, at a hearing attended by Appellant, and a phone appearance by
Appellee, the Okanogan Court found, by a preponderance of the evidence, that no domestic
violence occurred between the parties, and dismissed its TRO. The Okanogan order does not
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contain findings of fact supporting its ruling.
In spite of the fact that Appellee had not received service of Appellant’s tribal custody
pleadings, the Tribal Court held at least two (2) hearings on the custody issue, granting
temporary custody to Appellant and issuing a warrant to pick up the child. The record does not
indicate the basis of the ex parte orders, nor the Tribal Court’s findings on why it proceeded
without proof of adequate service on Appellee.
Appellant took his Tribal Court temporary orders first to Okanogan County, then to
Island County, and on to Snohomish County courts for registration of the foreign orders. All
the state courts granted full faith and credit of the tribal court orders, and, initially, Snohomish
County Superior Court, in April, 2014, dismissed Appellee’s custody case, finding it was first
filed in Tribal Court. After being asked to reconsider its ruling, the Snohomish Superior Court
reversed its ruling in May of 2014, finding it did have concurrent jurisdiction. It reserved
further rulings on which Court had the primary jurisdiction until it conferred with the Judge of
the Colville Tribal Court.
On July 11, 2014, Appellant filed a request in the Okanogan Court for recognition of the
Tribal Order under the Uniform Child Custody Enforcement Act (UCCJEA), RCW Chapter
26.27. Appellant also raised the issue of the Parental Kidnaping Prevention Act (PKPA), 28
USCA, § 1738A, before the Tribal Court. The Tribal Court never addressed the issue.
On November 17, 2014, the judges of the Snohomish and Colville Tribal Courts had a
telephone conference to discuss which Court had jurisdiction under UCCJEA. They concluded
that the Courts had concurrent jurisdiction; that the child had lived his whole life in
Washington State, with the last year in Snohomish County; that Snohomish County was the
more convenient forum; and that the Coville Tribal Court would decline jurisdiction in favor of
Snohomish County Court jurisdiction, and dismiss the Tribal Court case. From this order
Appellant timely filed his appeal.
ISSUES
1)
Did the Trial Court err in failing to address the PKPA issue?
2)
Did the Trial Court err in finding concurrent jurisdiction with Snohomish Court, and
declining jurisdiction in favor of the Snohomish Court under the principles of the
UCCJEA?
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STANDARD OF REVIEW
The first issue is a question of law; the second a mixed question of fact and law. We
review both under the de novo standard. We review mixed questions of fact and law when the
administration of justice is better served by such a review by the Court of Appeals. CCT v. Naff,
5 CCAR 50 (1995).
DISCUSSION
1) DID THE TRIAL COURT ERR IN FAILING TO ADDRESS THE PKPA ISSUE?
The PKPA is a federal statute which was enacted after the Uniform Child Custody
Jurisdiction Act (UCCJA), the precursor of the UCCJEA. The PKPA was enacted in 1980 to
address the problem of parents removing children from the jurisdiction of the courts with
UCCJEA jurisdiction. The PKPA generally prohibits a parent from removing a child from the
court’s jurisdiction pending the final resolution of the case.
The PKPA does not explicitly define Indian tribes as “states” for the purpose of
interstate full faith and credit. The Washington State UCCJEA, RCW Chapter 26.27, does
include tribes as “states” for the purpose of its enforcement. The UCCJEA has been adopted by
all fifty (50) states and the Territories. The Confederated Tribes of the Coville Reservation
(CCT) has not adopted either a parental kidnaping statute or a UCCJEA statute.
The Colville Tribal Courts do not create legislation. That is the responsibility of the
Colville Business Council (CBC). We (I would find) hold the PKPA does not apply in this case.
CTC § 5-1-33 provides that a “spouse” cannot remove a child from our jurisdiction
without a court order. Appellant argues we should apply this statute. The parties were not
married, however. We have ruled that the child of an unwed mother takes the domicile of the
mother. In Re S.l. 11 CCAR 62 (2014), citing Mississippi Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 48(1989). Appellee took the child to western Washington before Appellant filed his case
in Tribal Court, and after obtaining a temporary custody order in Okanogan County District
Court, at a time when she had domiciliary rights to the child. We (I would find) hold that CTC
§ 5-1-33 does not apply, and that Appellee was within her legal rights to take the child with her
when she moved.
Although the Okanogan Court found, on September 19, 2013, it was not proven by a
preponderance of the evidence that domestic violence occurred between the parties, we have
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13 CCAR ___
no indication of what facts were considered. By this time, Appellee had removed herself from
what she considered an abusive relationship, and initiated protection in her new residence.
When Appellee filed in the Snohomish Court, she stated that Washington was her
“home state,” per a UCCJEA requirement. This was true. While she lived on the CCT
Reservation, she was also a resident of Washington State. Not being legally-trained, she may
not have been aware that Washington considered the Colville Reservation as a “home state” for
purposes of the UCCJEA.
We (I find) hold the PKPA does not apply in our Courts, and, because the parties were
not married, CTC § 5-1-33 does not apply either. Appellee was within her legal rights to take
the child to another jurisdiction. She was under no legal obligation to stay on the Reservation,
and the child’s domicile follows her.
2) Did the Trial Court err in finding concurrent jurisdiction with Snohomish Court, and
declining jurisdiction in favor of the Snohomish Court under the principles of the UCCJEA?
Washington’s UCCJEA, RCW, Chapter 26.27, recognizes tribes as “states” for the
purpose of determining jurisdiction over mutual custody cases. The Tribes do not have a
similar law. The federal government passed a model UCCJEA, and each separate state and the
Territories, adopted its version of the federal model. The UCCJEA directs the states to consider
a tribe as a “state” for the purposes of determining a home state. The federal model does not
direct tribes to adopt a version of it.
In Carson v. Barham, 7 CCAR 17 (2013), we upheld the Trial Court’s adoption of a
version of a UCCJEA-type procedure which allowed the tribal judge and state judge to confer
and consult with each other to decide which court was the more convenient forum for a
custody case. It was recognized as an acceptable procedure for comity’s sake. Although there
were some irregularities in the conference call on November 14, 2014 between the Colville
Tribal Court Judge and the Snohomish Court Judge, we (I would) hold that none of them rise to
sufficient error to overturn the decision herein.
First, we cannot address whether the Snohomish Court erred in its procedures; we do
not have appellate review over state courts. The only review we can make is of the Tribal
Court’s actions. The Tribal Judge should have made a recording of the call. Without a
recording, we are left to review de novo the facts the judge had before him at the time of the call.
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We know that Appellant and Appellee are the unwed parents of the child, W.T..
Appellee obtained the first order in the custody dispute: the Okanogan TRO and Temporary
Custody Order, issued on September 9, 2013. After obtaining her order, she took the child to
western Washington to live. She was under no legal obligation to stay on the Reservation.
Appellant filed for custody in Tribal Court on September 10, 2013, but did not affect service of
his petition and summons until April, 2014, seven (7) months after he filed.
Appellee filed for custody in a state court on September 18, 2013, a day before her
hearing on the Okanogan TRO/Temporary Custody Order. On September 18, 2013, Appellee
obtained temporary orders from the Snohomish Court which restrained Appellant from
removing the child from its jurisdiction pending the final decision in the case.
In the following months Appellant obtained temporary orders from the Tribal Court,
although we have no record of why temporary orders were granted ex parte when there was no
proof of service on Appellee filed in Tribal Court.
During this period the child lived continuously with Appellee in western Washington.
The record shows that Appellant did appear in the Snohomish Court during this time, too,
with an attorney, advocating his right to custody of the child.
Those were the facts the Tribal Court judge had before him as he conferred with the
Snohomish Court judge. They found that both courts had jurisdiction; that Snohomish was the
more convenient forum, and that the Tribal Court would decline jurisdiction in favor of the
state court, and the Tribal Court judge dismissed the tribal case, allowing the parties to proceed
in the state court.
Although the judge erred in not preserving an oral record, and in finding that the
UCCJEA applied in Tribal Court, we (I find) hold these errors to be harmless. There is nothing
in the record to show that the parties could not adequately address the custody issues in the
Snohomish Court.
Our Code, CCT § 1-1-14412, gives our Courts the ability to fashion a suitable procedure
in the absence of a specific statute, when the interest of justice is served. We have concurrent
domestic relations jurisdiction with the State of Washington. See, Public Law 3-280 (PL280). We
12 Means to Carry Jurisdiction Into Effect. When jurisdiction is vested in the Court, all the means necessary to carry into effect are
also given and in the exercise of this jurisdiction, if the course of proceedings is not specified in this Code, any suitable process or
mode of proceeding may be adopted which appears most conformable to the spirit of Tribal Law.
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need to develop procedures to address cases that are before both the Tribal Court and a state
court at the same time. We must ensure that forum shopping is not allowed between the two
jurisdictions, while at the same time, not adopt laws that have not been enacted by our CBC.
This case has tied up several courts in search of an answer to where best it should be
handled. We do not substitute our judgment for the Trial Court’s decision if we disagree with
it. We review the record to see if there is sufficient evidence to support the Trial Court’s
decision, and if it does, we affirm. We so hold/I so find.
CONCLUSION
Based on the foregoing, the Order From UCCJEA Conference entered November 17,
2014 is affirmed. This matter is remanded to the Trial Court for action consistent with this
Order.
DISSENT
Bass. J
The Appellant, Richard Tupling, appealed the Order from UCCJEA Conference. For
the reasons set forth below, I would hold that errors were committed by both the Colville Tribal
Court and the Snohomish County Superior Court of the State of Washington and would reverse
the Order from UCCJEA Conference, and remand for further proceedings consistent with this
dissent.
FACTS AND COURSE OF PROCEEDINGS
Richard Tupling (Tupling), and Cassandra Kruse (Kruse) are the unmarried parents of
W., date of birth April 6, 2012. They resided together with the child within the bounds of the
Colville Confederated Tribes reservation from the date of birth of the child until September 9,
2013.
Tupling is a member of the Colville Confederated Tribes. Kruse is non-native. W. is a
member of the West Bank Tribe, which is a First Nation in Canada. Although W. is a
descendant of a Colville Tribal member by virtue of is father's membership in the Colville
Tribe, he is not an enrolled Colville Tribal member.
On September 9, 2013, Kruse obtained an ex parte protection order from the Okanogan
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County Superior Court (Okanogan) awarding her temporary custody of the child. Kruse listed
her address as 2967 Columbia River Road, Okanogan, Okanogan County, Washington, which is
within the boundaries of the Colville Indian reservation, and is the address where W., Kruse
and Tupling resided. Kruse fled on September 10, 2013 with the child to an location unknown
to Tupling.
On September 10, 2013, Tupling filed a Petition for Custody and/or Support in the
Colville Tribal Court (Colville).
On September 18, 2013, Kruse filed a Summons and Petition for Residential
Schedule/Parenting Plan and Child Support in Snohomish County Superior Court
(Snohomish). In the summons instead of listing her actual address she listed the address where
she could be served at as the Snohomish County Superior Court Clerk's office.
On September 18, 2013, Snohomish issued a Temporary Restraining Order restraining
Kruse and Tupling from changing the residence of the child until further court order. This
order did not specify where the residence of the child was at that time, except it was apparent
he was with his mother, Kruse.
On September 19, 2013, with Kruse appearing telephonically and Tupling in person,
there was a show cause on the ex parte protection order in Okanogan. The court found by a
preponderance of evidence that domestic violence had not occurred and dismissed the case.
Kruse provided an address on Camano Island, Washington, her father's address.
On September 19, 2013, Colville issued a Temporary Order granting Tupling custody of
W., and scheduled a Show Cause Hearing for September 30, 2013.
On October 21, 2013, Colville issued a Temporary Residential Schedule establishing
primary residence of W. to be with Tupling.
On October 21, 2013, a letter from Colville to Kruse that had been sent to 33 Miller Rd,
Omak Washington, which was Kruse's mother's address, was returned to Colville marked
“return to sender, not deliverable as addressed, unable to forward”.
On October 24, 2013, Colville issued a Warrant for Protective Custody No Bail warrant
for W.
On December 2, 2013, the Island County Sheriff was contacted by the Colville Tribal
Police Department seeking assistance in locating Kruse. The Stanwood Police Department had
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given the Colville Police Department the address that showed as her address on her drivers
license, which was 1780 Mercyside Lane, Camano Island, Washington. The Colville Police
Department gave that address to the Island County Sheriff's Department, and an officer went to
that address and an occupant told him that Kruse did not live there but had moved into her
new home on Maple Grove Road. The father of Kruse lived at 1780 Mercyside Lane, Camano
Island. The officer talked to Kruse at the Maple Grove Road address, and after finding that the
child and the home seemed fine, took no other action.
On December 17, 2013, Okanogan issued an Order for Full Faith and Credit on Colville
Tribal Temporary Custody Order, Temporary Parenting Plan and Protective Custody Warrant
granting full faith and credit to the Colville Temporary Custody Order, Temporary Parenting
Plan and Protective Custody Warrant.
On December 30, 2013, Tupling filed a Petition for Full Faith and Credit on Colville
Temporary Custody Order, Temporary Parenting Plan and Protective Custody Warrant in
Island County Superior Court, as Camano Island was in Island County.
On April 16, 2014, a Snohomish County Superior Court Commissioner issued an Order
Dismissing the Snohomish case involving custody with prejudice, stating the reason that the
action was filed first in Colville.
Kruse filed a Motion and Declaration for Revision of Court Commissioner's ruling dated
April 16, 2014.
Although there is not a copy signed by a Snohomish judge, there is an unsigned order
which apparently was signed by Judge Lucas of Snohomish sometime in May, 2014, that
reversed the Snohomish Court Commissioners order of April 16, 2014 and found that there
was concurrent jurisdiction and reserving the issue of jurisdiction until a conference between
Snohomish and Colville be held to establish jurisdiction under the UCCJEA.
On April 21, 2014, Kruse was served personally with the Petition for Custody,
Temporary Residential Schedule and Warrant for Protective custody issued by Colville at 149
North 3rd Street, in Okanogan, Washington, which is the address for the Okanogan County
Superior Court.
A hearing was held in Snohomish on the 8th day of May, 2014, ordering that a UCCJEA
conference should take place between Snohomish and Colville.
On July 11, 2014, Tupling filed a request for child custody determination registration
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under UCCJEA with Okanogan.
On September 5, 2014, a hearing was held in Colville with the Colville Court ordering
that a UCCJEA conference would take place.
On September 23, 2014, Colville issued an Order from Motion Hearing ruling that the
court would await a conference call with Snohomish before deciding jurisdiction.
On October 15, 2014, Kruse filed a brief with Colville alleging that 28 U.S.C. 1738A,
commonly known as the Parental Kidnapping Prevention Act (PKPA), was not applicable to
the Colville Tribe. The Colville Tribal Trial Court did not rule on that issue.
On October 24, 2014, a UCCJEA conference was held. The Snohomish judge and Kruse
appeared in person in the Snohomish Court. Kruse’s attorney and the Colville judge appeared
by telephone. No recording of the conference was made by Colville.
Pursuant to the telephone conference of October 24, 2014, an “Order from UCCJEA
Conference” (OFUC) was prepared for the signature of the judges from Snohomish and
Colville. The Judge from Colville signed it on November 17, 2014 and filed it in Colville
November 17, 2014. The Judge from Snohomish signed it on December 9, 2014 and filed it in
Snohomish on December 9, 2014. The Findings in the OFUC were that both courts agreed that
both courts had subject matter jurisdiction, that the minor child had resided in Washington
State his entire life, and the minor had resided in or around Snohomish County for the previous
year. Based on the child's residence in Snohomish County, the Courts determined that
Snohomish County was the most convenient venue for this matter to be heard. The Conclusions
of Law were that the Colville Tribal Court declined to exercise jurisdiction in favor of
Washington State, County of Snohomish and Snohomish accepted jurisdiction. The OFUC
ordered that the Colville case be dismissed, that the temporary parenting plan and protective
custody warrant issued in the Colville case also be dismissed, and that the matter would
proceed in Snohomish.
There is nothing in the record before this Court as to any action taken in the Snohomish
Court subsequent to the Order from UCCJEA Conference dated November 17, 2014.
Tupling timely appealed the Order from the UCCJEA Conference under Colville Tribal
Code (CTC), sections 1-2-77 and 1-2-108.
ISSUES AND STANDARD OF REVIEW
The first issue in this case is did the Trial Court err in ruling in the OFUC that the
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conference was under the UCCJEA. Since that is an issue of law, the standard of review is de
novo. CCT v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
The second issue is whether the Colville and the Snohomish Courts erred in considering
concurrent jurisdiction in a UCCJEA conference. Since that is an issue of law, the standard of
review is de novo. CCT v Naff, supra.
The third issue is did the Colville and the Snohomish Courts err in a UCCJEA
conference when they considered the child's residence in Snohomish County as a basis to
invoke the most convenient forum in deciding jurisdiction. Since that is an issue of law, the
standard of review is de novo. CCT v Naff, supra.
The fourth issue is did Colville and Snohomish Courts err by considering this is a
UCCJEA case when the jurisdictional standards of the Colville Tribe were different than those
of Washington state in the UCCJEA. Since that is an issue of law, the standard of review is de
novo. CCT v Naff, supra.
The fifth issue is did the Colville Court have the authority to decline jurisdiction in favor
of Snohomish. Since that is an issue of law, the standard of review is de novo. CCT v Naff, supra.
The sixth issue is whether the Colville or Snohomish Courts should have considered
whether the PKPA applied to this case. Since that is an issue of law, the standard of review is de
novo. CCT v Naff, supra.
The seventh issue is whether Tupling timely served Kruse. Since that is a
mixed question of fact and law the standard of review is de novo. CCT v Naff,
supra.
The eighth issue is whether the Colville Court erred in not recording the hearing which
led to the OFUC. Since that is a mixed question of fact and law, the standard of review is de
novo. CCT v Naff, supra.
The ninth issue is whether all the factors relevant to the application of comity were
considered in this case. Since this is a mixed question of fact and law, the standard of review is
de novo. CCT v. Naff, supra.
The tenth issue is if the conference in this case is to be considered under comity rather
than the UCCJEA, should the first to file rule have been considered. Since that is a question of
law, the standard of review is de novo. CCT v Naff, supra.
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DISCUSSION
The issue of subject matter and personal jurisdiction in child custody cases between
state and tribal courts is one of the most complex, confusing and murky legal issues parties,
lawyers and courts face. There is a myriad of laws that intersect in such cases. The
relationship between just two of the laws, the UCCJEA and the PKPA, and not involving tribes
have been described as “technical enough to delight a medieval property lawyer.” Mix in the
other laws which will be considered in the following discussion and you have a dizzying array
of laws to consider, and it is no wonder that parties, lawyers and courts can fail to find their
way through the maze. The best way to start this discussion is to address the history of those
laws.
Chronologically, the first law that impacts child custody jurisdiction between states and
tribes is Public Law 83-280 (PL 280), enacted in 1953. It allowed states to assume jurisdiction
over child custody on Indian reservations such as the Colville Reservation, which the State of
Washington did assume in RCW 37.12.010. Notably the State of Washington did not assume
exclusive jurisdiction over child custody, leaving the Colville Tribes to retain concurrent
jurisdiction over such cases, which it did pursuant to CTC 5-1-120 et seq. The State of
Washington and the Colville Tribes thus have concurrent jurisdiction over child custody
matters. The impact of this law is discussed infra.
An excellent history of the Uniform Child Custody Jurisdiction Act (UCCJA), the
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), and the Parental Kidnapping
Prevention Act (PKPA) is contained in a monograph by Patricia M. Hoff prepared for the U. S.
Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency
Prevention in the December 2001 issue of the Juvenile Justice Bulletin, with appropriate
citations. That monograph is used to detail the history set forth below.
Before 1968, state courts could exercise jurisdiction over a child custody case based on a
child's presence in the state. Courts freely modified sister states orders because the U. S.
Supreme Court rulings had never settled the question of whether the Full Faith and Credit
clause of the U. S. Constitution applied to custody decrees. This legal climate fostered child
abduction and forum shopping, and because parents with physical possession of a child could
choose the forum that would decide custody, parents had a legal incentive to abduct children.
The comity doctrine would have been the only means of resolving disputes between states over
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which state had jurisdiction. Given the interstate nature of the problem, an interstate solution
was needed. The Uniform Conference of Commissioners on Uniform State Laws (NCCUSL) is
an national organization that proposes uniform laws for the states to consider in areas of law
where there should be uniformity between states. It is up to the states to determine whether to
adopt such uniform laws. In 1968 the NCCUSL responded with the Uniform Child Custody
Jurisdiction Act (UCCJA), which governed the existence and exercise of jurisdiction in initial
child custody determinations and cases involving modification of existing orders. The law
required states to enforce and not modify sister states orders. The law was adopted in one form
or another by all 50 states.
Although the UCCJA was a major improvement over pre-1968 law governing
jurisdiction in child-custody cases, some problems remained. The law did not eliminate the
possibility of two or more states having concurrent jurisdiction, and the Act's prohibition
against simultaneous proceedings was not routinely effective in preventing courts in different
states from exercising jurisdiction and issuing contradictory rulings. Some judges were using
the emergency jurisdiction to provide permanent relief rather than temporary relief.
Jurisdictional conflicts also continued in modification cases. Also the Act did not provide
enforcement procedures to carry out the requirements. Some states had variations in language
which undermined the uniform interpretation and application of the law across the country
and created loopholes that led to the issuance of conflicting custody orders.
In order to close existing gaps and bring greater uniformity to interstate child-custody
practice, Congress in 1980 enacted the PKPA. It required (emphasis supplied) state courts to
enforce and not modify custody determinations made by sister states consistently with the
PKPA unless the original state no longer had or had declined to exercise its jurisdiction; defer
to the “exclusive, continuing jurisdiction of the decree state” as long as that issuing state
exercised jurisdiction consistently with the PKPA when it made its determination, had
jurisdiction under its own law, and remained the residence of the child or contestant; and must
refrain from exercising jurisdiction while another state was exercising jurisdiction over a matter
consistently with the PKPA.
The PKPA's jurisdictional criteria resemble those of the UCCJA, but there are significant
differences. The PKPA prioritizes home state jurisdiction in initial custody cases. Whereas two
States may have jurisdiction under the UCCJA, one “home state” and the other significant
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connection jurisdiction, the PKPA gives priority to “home state” jurisdiction. The home state is
defined as the state where the child lived with a parent for at least six months immediately
before the custody action was filed.
The PKPA did not solve all of the problems it targeted because of some confusion about
its relationship to the UCCJA, because of the inconsistencies between the two laws, and partly
because lawyers and judges ignored the PKPA or were unaware of its impact on UCCJA
practice.
Some laws enacted after the UCCJA added a Federal dimension to interstate child
custody practices that were unforeseen by the drafters of the UCCJA in 1968. In addition to the
PKPA, these include the Full Faith and Credit provisions of the Violence Against Women Act
(VAWA) enacted in 1994. VAWA recognized that domestic violence victims often leave the
state where they were abused and need continuing protection in their new locations, and thus
provided for interstate enforcement of protection orders. Custody provisions incorporated into
protection orders, however are not governed by the VAWA. Significantly they are “custody
determinations” subject to the PKPA and state law governing jurisdiction in child custody
cases.
Enter the UCCJEA. By January, 2016, it had been adopted by 49 states, excepting
Massachusetts. It was adopted in the State of Washington in 2001 in RCW Title 26 Chapter
26.27. The intent of the UCCJEA was to avoid jurisdictional competition and conflict with
other states in matters of child custody which in the past have resulted in the shifting of
children from state to state with harmful effects on their well-being, and to discourage
continuing controversies over child custody in the interest of greater stability of home
environment and of secure family relationships for the child.
The UCCJEA is a complete replacement of the UCCJA. Articles 1 and 2 contain
jurisdictional rules that bring the UCCJA into conformity with the PKPA. The UCCJEA grants
priority to “home state” jurisdiction; authorizes courts to exercise emergency jurisdiction in
cases involving family abuse; and limiting the relief available in emergency cases to temporary
custody orders, and directs courts to decline jurisdiction created by unjustifiable conduct.
Under the UCCJEA, like under the PKPA, a court has “home state” jurisdiction if the
child has lived in the state for at least 6 months preceding commencement of the action.
Commencement of the action is defined in the UCCJEA adopted by the
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Washington state legislature in RCW 26.27.021 (5) as “the filing of the first
pleading in a proceeding.”
RCW 26.27.251, Simultaneous Proceedings,(1) provides that a court of Washington may
not exercise its jurisdiction over a child custody proceeding if at the time of the commencement
of the proceeding, a proceeding concerning the custody of the child has been commenced in a
court of another state having jurisdiction substantially in conformity with this chapter, unless
the proceeding has been terminated or is stayed by the court of the other state because a court
of this state is a more convenient forum. (emphasis supplied).
RCW 26.27.041, Application to Indian tribes, (3) provides that a child custody
determination made by a tribe under factual circumstances in substantial conformity with the
jurisdictional standards of this chapter (emphasis supplied) must be recognized and enforced
under Article 3.
ISSUE #1
Did the Colville Tribal trial court err in ruling in the OFUC that this was a conference
pursuant to the UCCJEA and conduct the conference as a UCCJEA conference?
All of the documentation in the Trial Court case file consistently refers to the interaction
between the Colville and Snohomish as being pursuant to the UCCJEA. The OFUC refers to it
as a UCCJEA conference. Washington State has adopted the UCCJEA in Chapter 26.27 of the
Revised Code of Washington (RCW). RCW 26.27.101 provides for a conference between courts
in a proceeding under the UCCJEA. The Colville Tribes have not adopted the UCCJEA in the
Colville Tribal Law and Order Code (CTLOC). The only way the UCCJEA can be enacted by
the Colville Tribes is by adoption by its legislature, the Colville Tribal Council. The majority
opinion correctly asserts that the Colville Tribal Court of Appeals does not create legislation.
The same applies to the Trial Court. The Colville Trial Court could not adopt the UCCJEA, but
it did in the OFUC. The Colville Tribal Council did not adopt the UCCJEA. The UCCJEA is not
a part of the law of the Colville Tribes. The majority opinion refers to the conference as a
“UCCJEA type procedure” pursuant to the concept of comity. Comity was never mentioned at
all in any of the proceedings of the Colville and Snohomish courts. The Colville and
Snohomish Courts did not engage in the conference on the basis of comity, but only as a
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UCCJEA conference. The Trial Court Judge had no authority to act pursuant to the UCCJEA.
The Trial Court Judge acted beyond his authority in engaging in a conference with regard to the
UCCJEA. Acts by a court acting without authority are void ab initio. CCT v Stensgar, 6 CTCR 39,
3 CCAR 47 (2013). The Trial Court Judge's action in engaging in a conference with the
Snohomish County Superior Court is void ab initio.
Issue #2
Did the Colville and Snohomish Courts err by considering concurrent jurisdiction in
a UCCJEA conference?
The UCCJEA was intended to eliminate the notion of concurrent jurisdiction, as a
justification for exercising judicial power, instead focusing on the home state of the child, “that
state that the child had resided in for the six months preceding the commencement of a child
custody action,” as the basis for subject matter jurisdiction. There is nothing in the UCCJEA
that concurrent jurisdiction is a basis for jurisdiction, rather making the home state of the
child the paramount consideration. The courts in this case injected a consideration in the
OFUC, I. e., concurrent jurisdiction, that cannot be considered in determining jurisdiction.
They thereby made a finding that was not authorized by law, and cannot be considered in such
a proceeding. Since it was a basis for their Order, the Order is based on an invalid
consideration, and is void ab initio.
Concurrent subject matter jurisdiction would only be a relevant issue if the case was
being considered pursuant to RCW 37.12.010, in which the State of Washington pursuant to
Public Law 280 assumed jurisdiction over child custody cases on reservations in the State of
Washington and CCT 5-1-120 in which the Colville Tribe retained jurisdiction over child
custody cases. This case was considered by Colville and Snohomish strictly under the
UCCJEA, in which concurrent subject matter jurisdiction is not a consideration, and thus
concurrent jurisdiction was not a factor to be considered. The courts acted without authority to
make such a finding. Doing so was void ab initio.
Issue #3
Did the Colville and the Snohomish err in a UCCJEA conference by considering the
child's residence in Snohomish County as a fact to consider in order to invoke the most
convenient forum factor.
The convenient forum consideration in UCCJEA cases only comes into play if the
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courts can't find that there was a home state for the child. In this case the courts did not make
any findings that would lend itself to the home state issue. The custody case was filed in
Colville Tribal court first. Under RCW 26.27.041 (2) a Washington State court shall treat a tribe
as if it were a state of the United States for the purpose of applying articles 1 and 2, which are
the General Provisions and Jurisdiction articles of the UCCJEA. Since the courts were treating
the conference as a UCCJEA conference, that means that the courts should have been hearing
evidence with regard to the home state of the child, which in this case would have been the
Colville Indian Reservation. They did not, and erred in not doing so, and by using the most
convenient forum applied the wrong part of the UCCJEA to the case. The courts made a
finding that was beyond their authority to make. The Order based on considering convenient
forum is void ab initio.
Issue #4
Did the Colville and the Snohomish err by considering this a UCCJEA case when the
jurisdictional standards of the Colville Tribe were different than those of Washington State
in the UCCJEA?
RCW 26. 27. 251 supra., indicates that in order for the Washington State version of the
UCCJEA to apply to the Colville Tribes, the Colville Tribal Code (CCT) must have jurisdictional
standards substantially in conformance with the Washington State UCCJEA. CCT 1-1-430
provides that entrance by any person into the Reservation shall be a consent to civil
jurisdiction. CCT section 1-1-71 provides that jurisdiction invoked by this code is exclusive
and preempts jurisdiction of any state unless federal law provides otherwise. CCT 1-1-431 ) (a)
(6) provides that the Colville Tribes shall have civil jurisdiction over children and their parents
with responsibility for the child who leave the jurisdiction and the court had jurisdiction over
whom the court had jurisdiction at the time they left. The jurisdictional standards of the
UCCJEA in Washington for initial child custody jurisdiction in this case are contained in RCW
26.27.201 and 26.27.041. RCW 26.27.201 (a) provides that a Washington State court has
jurisdiction to make an initial child custody determination only if the state is the home state of
the child
RCW 26.27.201 (1) (a) provides that a Washington State Court has jurisdiction to
make an initial child custody jurisdiction if: “Except as otherwise provided in RCW 26.27.231(
which pertains to Temporary emergency jurisdiction), this state is the home state of the child at
the date of the commencement of the proceeding, or was the home state of the child within six
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months before the commencement of the proceeding and the child is absent from this state but
a parent or person acting as a parent continues to live in this state;”.
It is obvious from
reading the jurisdictional standards of the State of Washington and the Colville Tribe that they
greatly differ.
The provisions of the CTC are not standards substantially in conformance with
the UCCJEA with regard to jurisdiction. That means that the UCCJEA does not apply to this
case. Neither court should have applied the UCCJEA to this case, and there should never
have been a conference pursuant to the UCCJEA participated in by either judge of either court.
Considering this case to be a UCCJEA case is void ab initio because the jurisdictional standards
of the CCT were not substantially in conformance with those in the Washington State UCCJEA.
Issue #5
Did Colville have the authority to decline jurisdiction in favor of Snohomish.
CCT “1-1-430 Entrance by any person into the Reservation shall be a consent to civil
jurisdiction.” CCT “1-1-431 is titled Acts Submitting Person to Jurisdiction of Tribal Court.
Subsection (a) (6) of that section reads as follows: “The Colville Confederated Tribes shall have
civil jurisdiction over children and their parent(s), guardian, legal custodians or other persons
with responsibility for or control of the child who leave the exterior boundaries of the
Reservation and over whom the Court had jurisdiction at the time they left.” Kruse and W.
had entered the reservation, thereby consenting to civil jurisdiction. Kruse is a parent of
W..She had responsibility or control of W. when she Kruse left the reservation. The Colville
Tribal Court had jurisdiction over Kruse and W. at the time they left the reservation.
The
tribal trial court judge is obliged to follow the laws of the Colville Tribe by their oath.
Declining jurisdiction in this case to the State of Washington is in direct contravention of
foregoing cited tribal law. The tribal court judge is not vested with authority to do so.
The
Trial judges action is void ab initio. See CCT v Stensgar 6 CTCR 09, 11 CCAR 47 (2013).
Issue #6
Should Colville or Snohomish have considered whether the PKPA applied to
this case?
The State of Washington is required to comply with the PKPA. In re Marriage of
Murphy, 90 Wash.App. 488, 952 P. 2d 624 (1998). In the Murphy case, the appellate court sua
sponte raised the issue of the PKPA, even though the trial court had not, and reversed and
remanded for the trial court to comply with the PKPA. The fact that W. had been resident on
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the Colville reservation, in Okanogan county, Washington from his birth to September 10, 2013,
when Kruse fled to either Camano Island, Island County, Washington or Snohomish County,
Washington, is admitted by Kruse in her briefs and pleadings. For the PKPA to apply in this
case, the Colville Tribes must also be bound by the PKPA. There is a split among the courts as
to whether Native American tribes are included under the PKPA, and thus bound by it. Some
of the cases are discussed in In re Marriage of Susan C., 114 Wn.App 766 (2002). In re Custody
of Sengstock 165 Wis. 2D 86, 477 N.W.2d 310, holds that Tribes are not included under the
PKPA. In re the Child Custody of D.W.O.E. 2001 Crow 5 (Crow 5/25/2001) and Miles v
Chinle Family Court No. Sc-CV-04-08 (Navajo 02-21-2000) held that the PKPA did not apply to
Indian Tribes.
In re Larch 872 F.2d 66, (4th Cir. 1989) holds that Tribes are included.
Martinez v. Superior Court 152 Ariz. 300, 731 P.2d 1244 (1987) holds that Tribes are included.
In re Marriage of Susan C., supra, holds that Tribes are included. In the Matter of the Custody
of Mariah Watchman, No. 242 (Fort Peck 12-19-1996), the Fort Peck appellate court implicitly
held that the PKPA applied to the Fort Peck Tribe.
The issue of whether the PKPA applied to this case was raised in the Colville trial
court and never ruled on by that court. The issue was apparently never raised in Snohomish
based on the records available in this appeal. The fact of Kruse in effect kidnapping the child
from the Colville reservation, the lifelong residence of the child and fleeing to Island County,
Washington and subsequently to Snohomish County, Washington is exactly what the UCCJA,
PKPA, and UCCJEA have been designed to prevent i.e., stop parents from removing children
from their home state, and fleeing to another jurisdiction to institute child custody proceedings
when a proceeding has been commenced in their home state. That action leads to exactly what
has happened in this case : parallel litigation in both jurisdictions, and appeals therefrom, and
the expenditure of resources of both the parties and the courts. That is not in the best interests
of the parties, the courts or the children. The case should be remanded to the trial court to
address the issue of whether the PKPA applies to the Colville Tribes.
Issue #7
Did Tupling timely serve Kruse.
There is no question that Tupling filed for custody first, in Colville, but although he
sought to serve Kruse, he did not effect service until April 21, 2014, over seven months after his
filing. The Colville court never addressed the question of whether Colville lost jurisdiction
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due to the lapse of time between filing and service at the Okanogan County Courthouse. That
is something the Colville trial court should consider on remand.
Issue #8
Did the Colville err in not recording the hearing which led to the Order From
UCCJEA Conference dated November 17, 2014?
The OFUC references a hearing held on the 24th of October, 2014. There is no record of
that hearing in the Colville Tribal Court, apparently because the Colville Tribal court judge
participated in the hearing from his office in Spokane, rather than at the tribal court.
CCT v
Dogskin 5 CTCR 31, 10 CCAR 45 (2011), held that when there is no oral record of a hearing,
the Court of Appeals is unable to perform a meaningful review of the record and the matter has
to be referred back to the trial court to make a new record. The Order appealed in this case
seems to incorporate both the considerations appropriate for a UCCJEA conference, and those
that should be considered were this a concurrent jurisdiction case, which would be
inappropriate in a UCCJEA conference. Without a record, this court is unable to perform a
meaningful review to determine on what basis the courts were acting, and thus the matter must
be remanded back to the Tribal Court to make a new record.
Issue #9
Were all the factors relevant to the application of comity considered in this case.
The starting point of the discussion of this issue is that the conference between Colville
and Snohomish was solely a UCCJEA conference, and not a comity conference. The majority
decision is correct in asserting that if the UCCJEA and PKPA do not apply in this case, the
doctrine of comity applies. That is because the State of Washington assumed jurisdiction over
child custody matters on the Colville reservation under P. L. 280 supra., and the Colville Tribes
retained its jurisdiction over child custody matters, leaving each with concurrent jurisdiction
over child custody matters.
“Comity is a recognition which one nation extends within its
own territory to the legislative , executive, or judicial acts of another. It is not a rule of law, but
one of practice, convenience, and expediency. Although more than mere courtesy and
accommodation, comity does not achieve the force of an imperative or obligation. Rather it is
a nation's expression of understanding which demonstrates due regard both to international
duty and convenience an to the rights of persons protected by its own laws. Comity should be
withheld only when its acceptance would be contrary or prejudicial to the interest of the nation
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called upon to give it effect.” Somportex Limited v Philadelphia Chewing Gum Corp. 453 F.
2d 435, (3rd Cir. 1971).
If the doctrine of comity is to be applied there are a variety of considerations which
must be evaluated in such a conference which were not made in this case, including whether
declining jurisdiction would contravene Colville Tribal law and policy. See Purser v Purser, 9
NICS App 102 (April 2010); In the Matter of the Estate of Etsuko Futagi Toland 180 Wn,2d 836,
329 P.2d 386 (2014); and In re Marriage of Redfox, 2001 Crow 13 (Crow 11/23/2001). The
Colville Confederated Tribe has made it clear in its code that declining jurisdiction would
contravene both Tribal law and policy as stated in the code. Pursuant to CCT 1-1-70 the
jurisdiction of the Tribal Court shall be over all persons within the reservation. Pursuant to
CCT 1-1-71 titled Concurrent Jurisdiction, jurisdiction invoked by the code over any person,
cause of action or subject shall be exclusive and shall preempt any jurisdiction of any state.
Entrance by any person into the Reservation shall be a consent to civil jurisdiction. CCT
1-1-430. CCT 1-1-431 provides that the Colville Confederated Tribes shall have civil
jurisdiction over persons residing on the reservation and children and their parents who leave
the exterior boundaries of the Reservation and over whom the Court had jurisdiction at the
time they left.
Taken together these code provisions make it clear that declining jurisdiction
would contravene both the code and the Tribes policy which is that cases such as this should
be heard in Tribal Court. Declining jurisdiction contravenes such law and policy. The
Tribal trial court judge did not have the authority to decline jurisdiction. The Tribal court
judge should have put on the record the law and policy of the Tribes as reflected in the Colville
Tribes code and attempted to assert jurisdiction based on them. There is no record of the
hearing, and nothing in the OFUC lists any of the law and policy of the Colville Tribes which
should have been considered.
The declining of jurisdiction by the tribal court judge in this
case is void ab initio. On remand, the Colville should conduct a conference with Snohomish
and attempt to assert jurisdiction according to the law and policy of the Colville Tribes.
It is worth noting that use of the doctrine of comity in this case is only necessary because
there is no law clearly applicable to both the State of Washington and the Colville Tribes in
resolving child custody jurisdiction. The PKPA may apply, but it is not clear that it does. The
UCCJA, PKPA and the UCCJEA were enacted to resolve jurisdiction in child custody cases as
between States. Use of the doctrine of comity in child custody jurisdiction as between States
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was not effective in resolving disputes over jurisdiction, and especially parental kidnapping
before and after enactment of the UCCJA and the PKPA.
Lack of a law clearly applicable to
the State of Washington and the Colville Tribes in child custody jurisdiction leaves the State of
Washington and the Colville Tribes in the same situation the States were in before the
enactment of the UCCJA, PKPA and the UCCJEA. Just as comity was not an effective means
of resolving the issue of child custody jurisdiction as between the States, it is not the most
effective means in resolving the issue as between the State of Washington and the Colville
Tribes.
The State of Washington or the Colville Tribes may decline to agree the other has
jurisdiction based on their own interests. A parent can flee from one jurisdiction to the other
with the child ands seek to persuade the jurisdiction fled to to accept jurisdiction from a
position of strength, physical possession of the child. Until a law is enacted that governs child
custody jurisdictional issues as between the State of Washington and the Colville Tribes,
comity is the only legal doctrine available to determine jurisdiction.
Issue #10
If the conference in this case is to be considered under comity rather than the
UCCJEA, should the first to file rule have been considered.
Another consideration that was not addressed by the OFUC is the first to file rule. If
the conference in this case is considered to be a proceeding under comity the first to file rule
would come into play. The Colville Tribal Court has adopted the first to file rule in concurrent
jurisdiction cases in Carson v. Carson 4 CTCR 07, 7 CCAR 17 (2003). Tupling filed the first
custody proceeding in Colville. If this case is to be considered to be a concurrent jurisdiction
case, in the conference between Colville and Snohomish, Colville should have brought the
first to file rule up for consideration. The OFUC does not consider that and there is no
recording of the conference between Colville and Snohomish. On remand, there should be a
recorded conference between Colville and Snohomish in which the first to file rule should be
considered.
This dissent realizes that it may not be possible to untangle the legal morass that has
been made of this case in view of the passage of time and erroneous rulings made in both
Colville and Snohomish, but Tupling did appeal the entry of the OFUC in this case and this
court has a duty to at least point out the errors made for the edification of parties, lawyers and
judges in the future, and order the Tribal trial court who created the situation to address these
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concerns, follow the law, and attempt to remedy its error.
The reason that this dissent discusses the errors Snohomish made in its conduct of the
case is that they are errors made in the conduct of the conference between Colville and
Snohomish, resulting in the OFUC, which is the subject of this appeal.
ORDER
This dissent would reverse the Order From UCCJEA Conference, and remand the case
to the trial court for further proceedings consistent with this dissent.
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Herman “Lou” STONE, Appellant,
vs.
COLVILLE BUSINESS COUNCIL, Appellee.
Case No. AP16-017, 7 CTCR 18
13 CCAR 63
[Mark J. Carroll, Attorney at Law, appeared for Appellant.
Dana Cleveland, Office of Reservation Attorney, appeared for Appellee.
Trial Court Case No. CV-OC-2014-27145]
Decided January 19, 2017.
Before Presiding Justice Dennis Nelson, Justice Gary Bass, and Justice R. John Sloan Jr.
Bass, J., with Nelson J. concurring
This matter came before the Court of Appeals (COA) for an Initial Hearing on October 21, 2016.
The Appellant appeared in person and was represented by Mark J. Carroll. The Appellee appeared by the
Colville Tribal Reservation Attorney Dana Cleveland.
After hearing from the attorneys for the parties, and a review of the record and the law, the COA
finds that the dismissal of the action will be affirmed, but on different grounds entered by the Trial Court.
SUMMARY
A Complaint was filed by Appellant in the Trial Court against the Colville Confederated Tribes
(CCT) Business Council (CBC), and individual members of the CBC, all relating to actions taken by the
CBC or the individual members of the CBC. Francis W. Somday II was also named as a Defendant, but
his official position was not named, nor any specific actions he took as an official were pled.
Appellee filed a Motion to Dismiss on three grounds: (1) lack of subject matter jurisdiction; (2)
failure to state a claim upon which relief can be granted; and (3) mootness. Appellee subsequently filed
a second Motion to Dismiss, listing the three original grounds and adding that a settlement agreement
executed between the parties released the CCT from the present suit.
The Trial Court granted dismissal of the suit on the basis of failure to exhaust administrative
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remedies and that the action was barred by the 1992 Settlement Agreement as it arose out of the July 2,
1987 events.
Appellant timely filed an appeal to the Court of Appeals (COA).
The COA finds that the suit against the CBC is barred by sovereign immunity, and the dismissal
by the Trial Court is affirmed, on a different basis than found by the Trial Court.
The dismissal of the suit against Francis W. Somday II (Somday) is affirmed on the basis that his
official position was not pled, nor any actions he took as an official, which would be need to be pled for
the suit to go forward against him. The Trial Court's dismissal did not address the issue of Somday's
official immunity prong under the sovereign immunity doctrine, but included Somday with the members
of the CBC in its ruling with regard to failure to exhaust administrative remedies and the settlement
agreement.
STANDARD OF REVIEW
The issues raised are issues of law and thus are reviewed under the de novo standard. Green v.
Green, 10 CCAR 37, 5 CTCR 29 (02-08-2011).
DISCUSSION
This appellate court is concerned with the trial court's holding, and not whether the reasoning of
the decision is correct. [G]enerally a correct decision will not be disturbed because it is based on an
incorrect ground. Colville Business Council v. Wendell George, 1 CCAR 15, at p 16, citing 5 Am. Jur.
2d (1984). In this case, at the trial court level, the defense of sovereign immunity was not addressed in
the Order of Dismissal, although the issue had been raised by Appellee. The holding was that the suit be
dismissed. If this court finds that the dismissal was correct but on a different ground than the trial court,
the ruling of dismissal will not be disturbed.
In George, supra, Mr. George sued the CBC for alleged violations of his civil rights. The CBC
moved to dismiss on the basis of lack of jurisdiction; immunity from suit; lack of a claim upon which
relief could be granted; and that the issue raised was a political question.
The Trial Court granted the motion to dismiss on the ground that the issue was a political
question. The Trial Court did not reach the issues of lack of jurisdiction; immunity of suit; and lack of a
claim upon which relief could be granted.
The COA held that the CBC was protected by the doctrine of sovereign immunity and remanded
for dismissal. In its holding the COA held that there was no meaningful distinction between the CBC
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and the Tribes itself in such a lawsuit. CTLOC §1.1.06 bars an action against the Tribes and thus the
CBC on the grounds of sovereign immunity. The holding in George supra., applies here and the CBC is
entitled to the defense of sovereign immunity and the dismissal is proper on that ground as to the CBC.
The issue of sovereign immunity as to Somday rests on a different prong of the sovereign
immunity doctrine. Somday may have been acting as the Executive Director of the Tribe, which would
be an official of the Tribe, as he was not a member of the CBC at the time of the suit, and each one of the
individuals named besides him were members of the CBC. The complaint did not plead that he was an
official, and did not allege any acts specific to Somday.
The case of Lou Stone v. Francis Somday, 1 CCAR 9 (CCT, 1984) dealt with the issue of official
immunity as opposed to absolute immunity of the CBC. The COA held that officials hold qualified
immunity, not absolute immunity, which the CBC has. The ruling in that case held that a Colville Tribal
Official enjoys a qualified immunity under Tribal Law and Order Code section 1.1.06. If a Tribal official,
while performing official duties, exceeds the scope of his authority, or, while acting within the scope of
authority, exercises a power delegated to him by the Tribe which the Tribe is powerless to delegate,
official immunity will not bar actions against the official for such conduct.
Here because there is nothing in the pleading naming Somday as an official, or any acts that he
specifically performed for this court to assess under the ruling in the Stone v Somday case, supra., the
dismissal of the suit against Somday is proper without such pleading, although on a different basis than
the Trial Court's ruling. In the George case supra., because official capacity was not designated or pled,
the COA held official immunity was not before the Trial Court or the Court of Appeals. The same
rationale is applicable in this case as there was no designation of official capacity or pleading as to
Somday, and thus official immunity was not before the Trial Court or the Court of Appeals, and we find
that dismissal was proper as to Somday.
Because of the court's ruling with regard to sovereign immunity, this court did not reach the issue
of what effect the expelling of Stone from the CBC in 1987 would have had on his subsequent candidacy
or election to the CBC pursuant to CCT 1-8-3.
ORDER
Based on the foregoing, we find that the suit against the CBC is barred by sovereign immunity.
The dismissal by the Trial Court is affirmed. This matter is remanded to the Trial Court for action
consistent with this Decision.
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Dissent: Justice Sloan believes Appellant has raised issues for which additional briefing would be
beneficial and dissents.
Patrick GABRIEL, Appellant,
vs.
Claude COX, et. al, Appellees.
Case No. AP17-001, 7 CTCR 18
13 CCAR 66
[David Stevens, Attorney at Law, represented Appellant Gabriel.
David Shaw, Attorney at Law, represented Appellee CTFC/CTEC.
Alice Koskela, Office of Reservation Attorney, represented Appellee Colville Tribes.
Trial Court Case No. CV-OC-2006-26452]
Decided November 20, 2017.
Before Justices David C. Bonga, Gary F. Bass, and Michael Taylor.
STANDARD OF REVIEW
We review findings of facts under the clearly erroneous standard, and errors of law de
novo. Colville Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 Ind.Lw.Rptr. 6032 (1995).
PROCEDURAL HISTORY
This case had its beginnings as an employment issue in 2005 when the Colville
Confederated Tribes (Tribes) was in a process to limit its operating costs by consolidating
positions. As a result Appellant’s position within the Colville Tribal Enterprise Corporation
(CTEC) Risk Management Office was combined with the Tribes Risk Management Office.
Shortly thereafter Appellant’s position was identified to be eliminated in a reduction in force
(RIF) process. Appellant untimely challenged the RIF as CTEC management determined the
RIF had not yet occurred. A month later on 12/02/05 Appellant did receive a RIF notice and
Appellant’s last day of work was 12/16/05. Appellant filed a complaint alleging the RIF action
violated the Tribes’ Law and Order Code, Chapter 10, Tribal Employment Rights Office (TERO)
provisions. The TERO Director did not find a violation of Chapter 10 which lead Appellant to
initiate an “administrative claim” regarding TERO violations that was dismissed by the
Administrative Law Judge on 6/26/06. On 12/29/06 Plaintiff/Appellant filed a Civil
Complaint and throughout 2007 numerous motions were filed by the parties that resulted in a
7/17/08 Order to Remand the issue to TERO by the trial court. On 7/31/08
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Defendant/Appellee appealed the Order to Remand. The Court of Appeals, on a stipulated
motion of the parties Ordered on 9/09/09 to remand the case to the Trial Court. Numerous
motions, complaints were filed throughout 2010 by the parties. Motions to Dismiss were filed
on 4/29/11 by Appellee CTEC and on 5/02/11 by Appellee Tribes. The Motion to Dismiss was
granted by the Trial Judge on 7/26/16. A Motion for Reconsideration was filed by Appellant on
09/22/16 that was denied by the Trial Judge on 01/09/17 and the Appellant timely filed this
appeal.
WAS THE DEFENSE OF TRIBAL SOVEREIGN IMMUNITY OVERCOME?
It is well established that Indian Tribes enjoy sovereign immunity from suits absent a
clear waiver either by the tribe itself or by Congress. Colville Tribal Enterprises v. Orr, 5 CCAR 01
(CCT 12/04/1998); Oklahoma Tax Commission v. Potawatomi Tribe of Oklahoma, 498 U.S. 505
(1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978). The doctrine of sovereign
immunity requires the waiver to be explicit and unequivocally expressed, it must be in writing,
it must be authorized or provided by a party with the authority to waive immunity, and any
waiver must be strictly construed in favor of the tribal sovereign party. Orr, supra. Tribal
immunity from suit is fundamental to tribal sovereignty. It is an essential principle of Indian
law, recognized and adhered to by the Colville Courts. Stone v. Somday, 1 CCAR 09 (CCT
03/06/1984).
Appellant argued that Tribes/Appellee had explicitly waived sovereign immunity for
the claims asserted by Appellant. However the Appellant has not provided any indication or
evidence that the Tribes clearly waived its sovereign immunity from suit.
WAS THERE A VIOLATION OF PLAINTIFF/APPELLANT’S DUE PROCESS
RIGHTS WHEN A TRIBAL ADMINISTRATIVE AGENCY (TERO) DENIED
PLAINTIFF/APPELLANT’S CLAIM WITHOUT INFORMING PLAINTIFF/APPELLANT
OF A RIGHT TO APPEAL THE TERO COMMISSION DECISION, AND
HOW TO PRESENT THE APPEAL?
The Appellant argues that the Tribes’ actions and inactions can amount to a waiver of its
sovereign immunity. Allegedly the actions of TERO by providing misinformation to the
Appellant and directing the Appellant regarding procedural requirements to appeal a TERO
was somehow a due process violation that waived the Tribes’ sovereign immunity and opened
the door for the Appellant to continue his action against the Tribes. However all of the laws
relating to the standards and process for both filing and appeal to the TERO Commission
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(currently found at Tribal Code 10-1-31) and for the separate process of reopening a TERO
Agency investigation (currently found at 10-1-33) were publicly available at all relevant times.
To the extent these TERO laws were ignored or misunderstood, is no exception to the law on
tribal sovereign immunity waivers.
Furthermore, requiring the Tribal Government to provide notice above and beyond the
statute would be an exercise in redundancy as the Tribes would have to state the law twice once in the publicly available Tribal Code then once again in the body of the administrative
decision at issue. The law should not be interpreted to such an unreasonable end.
IS THE WAIVER OF SOVEREIGN IMMUNITY IN THIS CASE LIMITED TO
THE WAIVER UNDER CTC 10-1 EMPLOYMENT RIGHTS AND NOT
UNDER CTC 1-5 COLVILLE TRIBAL CIVIL RIGHTS ACT?
There is no waiver of sovereign immunity in this case. The Colville Business Council has
clearly preserved its sovereign immunity in order to protect the limited communal resources of
the Tribes. Colville Tribal Code 1-1-6 provides:
Except as required by a federal law, or the Constitution of the Colville
Confederated Tribes, or as specifically waived by a resolution or ordinance of the
Council specifically referring to such, the Colville Confederated Tribes shall be
immune from suit for any liability arising from the performance of their official
duties.
It is the Appellant who bears the burden of establishing the propriety of the Court’s
jurisdiction. Kokkonen v. Gardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994); Stock West v.
Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989); Levin v. U.S., 663 F.3d 1059, 1963 (9th Cir.
2011) (Where principles of sovereign immunity are at play, the Appellant “bears the burden of
pointing to such an unequivocal waiver of immunity”). In this case, the Appellant has not
provided any indication or evidence that the Tribes waived its sovereign immunity from suit.
The attorney for the Appellant during the opening statement at the Oral Argument hearing
stated that the information provided by the Tribes’ TERO office was incorrect and that
misstatement of the appropriate TERO procedures would be used to prove the Tribes had
implicitly (emphasis added) waived sovereign immunity.
As stated above a waiver of the Tribes’ sovereign immunity cannot be implicitly
waived, but instead the waiver must be explicit and unequivocal that was not the case in this
action.
It is hereby DECIDED that the decision of the Trial Court is AFFIRMED.
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Dakota WEED-BUTZ and Willard CARSON, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Nos. AP16-004, AP16-006, and AP16-007, 7 CTCR 20
13 CCAR 69
[David Stevens, Office of Public Defender, for the Appellants.
Weston Meyring, Office of Prosecuting Attorney, for the Appellee.
Trial Court Case No. CR-2014-37306.]
Decided June 7, 2017
Before Justices Anita Dupris, Rebecca M. Baker, and Gary F. Bass
Consolidated appeals from the Judgments and Sentences of Colville Tribal Court, per
the Hon. Scot D. Stuart (Weed-Butz Case Nos. CR 2015-37306 and CR 2015-38084, dated March
31, 2016), and from the Judgment and Sentence of Colville Tribal Court, per the Hon. Andrea
George (Carson Case No. CR 2015-38173, dated May 11, 2016).
For the appellants: David Stevens, Office of Public Defender.
For the appellee: Weston B. Meyring, Office of Prosecuting Attorney.
The case was decided by DUPRIS, C.J., BASS, J., and BAKER, J.
BAKER, J., delivered the opinion of the court, in which Dupris, C.J., and Bass, J.,
concurred.
THESE CONSOLIDATED CASES present the question of the impact on this Court’s
jurisprudence of the line of federal, state and tribal court cases beginning with the United States
Supreme Court decisions in Crawford v. Washington, 541 U. S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
These cases and their federal, state and some tribal courts’ progeny, deal with a criminal
defendant’s right of confrontation of witnesses. Here, we deal with suspended driver’s license
criminal prosecutions brought in Colville Tribal Court under the Colville Law and Order Code
(hereinafter “CTLOC”), specifically, CTLOC § 3-3-5. The defendants were convicted in bench
trials. No official from the Washington Department of Licensing (“DOL”) testified at any of the
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trials. Instead, the Trial Courts admitted written “certifications” from officials at the DOL to the
effect that, according to DOL records, (a) the defendants had received notices in the past that
their licenses would be suspended on a certain date, and (b) as of the dates of their alleged
driving incidents the defendants’ licenses remained in suspended status.
The defendants rely on, among other authorities, the holding in State v. Jasper, 174 Wn.
2d 96, 271 P.2d 876 (2012). They seem to acknowledge that a certified record of a notice of past
suspension, i.e., a Washington DOL (public) agency record, would be admissible. They take
issue with the admission, without a DOL officer’s live testimony and an opportunity to
cross-examine/confront the witness, of the statement that their licenses remained in suspended
status as of the date of their driving incidents.
The presence of a
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