HOH v. DREHER

17 NICS App. 7, HOH v. DREHER (January 2019)

IN THE HOH TRIBAL COURT OF APPEALS

HOH INDIAN RESERVATION

FORKS, WASHINGTON

Hoh Indian Tribe, Plaintiff/Appellee,

Rachel Dreher, Defendant/Appellant.

NO. HOH-Cr-03/17-006 (January 11, 2019)

SYLLABUS*

Appellant was found guilty of attempted theft in the second degree for cashing a check, which had previously been cashed. Court of Appeals reversed conviction and remanded case for dismissal as the court found that that trial court lacked jurisdiction to hear matter as there was no evidence to show that the criminal conduct occurred within the territorial jurisdiction of the Tribe.

Before:	Randy A. Doucet, Chief Judge; Eric Nielsen, Judge; Gregory M. Silverman, Judge.
Appearances:	Stephanie Hyatt, for Appellant; Tim Rybka, for Appellee.

OPINION

Per curiam:

BACKGROUND

Rachel Dreher was initially charged with five counts of theft in the second degree in one criminal complaint. Count five was later amended to attempted theft in the second degree. Count five of the complaint alleged, “…Defendant DREHER had stolen money when she illegally cashed a Tribal Per Capita check number 13656 twice at two separate locations in Forks Washington.”¹ The complaint alleged that the crime occurred “at or near the Hoh Tribal Center,

17 NICS App. 7, HOH v. DREHER (January 2019) p. 8

Hoh Washington, within the Hoh Reservation.² Only the prosecutor signed both the initial complaint and amended complaint.

During the trial, the prosecutor offered into evidence Ms. Dreher’s Certificate of Indian Blood, without having provided a copy to defense counsel prior to trial. The court offered to continue the trial to give defense counsel time to inspect the document. Defense counsel declined the continuance on the grounds of Ms. Dreher’s right to a speedy trial and requested the evidence be excluded. The court overruled the objection and admitted the Certificate of Indian Blood into evidence.³

After a bench trial, Ms. Dreher was convicted on count five, the attempted theft in the second degree. She was acquitted of the other counts. The only testimony regarding the location of the attempted theft was that it occurred at Forks Outfitters in Forks, Washington.⁴ The trial court found that a “video showed the defendant cashing this check at Forks Outfitters…”⁵ There was no evidence that the offense occurred within the Hoh Reservation.⁶ The trial court concluded it had “subject matter jurisdiction of this matter pursuant to Hoh Tribal Code because the criminal complaint alleges a crime against the Hoh Tribe.”⁷

DISCUSSION

Ms. Dreher raises four issues on appeal: 1) that the complaint is invalid because it was not witnessed by a judge, clerk of the court, or notary public; 2) that her due process rights were violated by admission of the Certificate of Indian Blood when it was not provided to the defense prior to trial; 3) that the court lacked subject matter jurisdiction over the charge of attempted theft in the second degree; and 4) that she was denied effective assistance of counsel because counsel failed to move for a directed verdict on the ground that the complaint was defective.

We hold that the trial court lacked jurisdiction over the attempted theft. Under Section 5.1.04 of the Hoh Law & Order Code, the “Hoh Tribal Courts shall have jurisdiction, pursuant to Hoh Tribal Code Title 1, Section 1.2, over all actions arising under this title.” Section 1.2.1 provides:

1.2.1 Subject Matter Jurisdiction. The Hoh Tribal Court shall be a court of general

jurisdiction. Its subject matter jurisdiction shall extend to all cases and controversies within the territorial jurisdiction of the Hoh Tribe, including but not limited to:

(a) All crimes committed by Indians;

(b) All actions under the civil regulatory laws of the tribe;

(d) All other matters placed within the jurisdiction of the tribal court by action of

the Hoh Tribal Business Committee or the Congress of the United States.

17 NICS App. 7, HOH v. DREHER (January 2019) p. 9

(emphasis added).

Title 1, Section 1.2.3, defines “territorial jurisdiction.”

1.2.3 Territorial Jurisdiction. The territorial jurisdiction of the Hoh Tribal Courts shall embrace:

(a) All land and property within the exterior boundaries of the Hoh Indian

Reservation;

(b) All land, wherever located, in which the Hoh Tribe owns an interest subject to

a federal restriction against alienation, or in which the United States owns an

interest in trust for the use and benefit of the Hoh Tribe;

member of the Hoh Tribe owns an interest which is subject to a federal restriction

against alienation, or in which the United States owns an interest in trust for a

member of the Hoh Tribe;

(d) All usual and accustomed fishing grounds and stations of the Hoh Tribe, for

actions arising under Hoh laws that regulate the exercise of treaty fishing rights;

(e) All of the State of Washington and any other place which was within

Washington Territory on March 8, 1855, for actions arising under the Hoh laws

that regulate the exercise of treaty hunting and gathering rights; and

(f) Any other place which is Indian country within the meaning of 18 U.S.C.

§1151 and in which members of the Hoh Tribe hold a significant property

interest, or constitute a significant portion of the Indian people residing on, doing

business on, or using, such place.

“A court’s primary duty in interpreting any statute is to discern and implement the intent of the legislative body.” Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008); see also Lomeli v. Kelly, 12 NICS App. 1, 10 (Nooksack Tribal Ct. App. 2014) (same); Cummings v. K’ima: W Medical Center,12 NICS App. 79, 82, (Hoopa Valley App. Ct. 2014) (same). To determine legislative intent “[t]he starting point must always be the statute’s plain language and ordinary meaning.” Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69 (Hoopa Valley Tribal Ct. App. 2005). See Baker v. Gourdine, 14 NICS App. 27, 29 (Muckleshoot Tribal Ct. App. (2016) (same). Where the language is plain and unambiguous there is no room for judicial interpretation. Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32, 49 (Suquamish Tribal App. Ct. 1995).

When read in conjunction, under the plain and unambiguous language in Section 5.1.04, Section 1.2.1 and Section 1.2.3, the Hoh Tribal Court only has subject matter jurisdiction over crimes committed by Indians within the territorial jurisdiction of the Tribe. The amended complaint asserted subject matter jurisdiction by charging that the offense occurred “at or near the Hoh Tribal Center, Hoh Washington, within the Hoh Reservation.” Subject matter jurisdiction is an essential element of an offense and a challenge regarding the jurisdictional element of an offense goes to the merits of the case and the sufficiency of evidence presented at trial. See United States v. Ratigan, 351 F.3d 957, 963 (9th Cir. 2003) (failure to prove subject matter jurisdiction does not divest the court of jurisdiction where subject matter jurisdiction is alleged in the complaint, but it must be proven beyond a reasonable doubt). The Tribe was required to prove all essential elements beyond a reasonable doubt. Title 5, Section 5.1.06(1) (“No person may be convicted of a crime unless each element of such crime is proven by competent evidence beyond a reasonable doubt.").

17 NICS App. 7, HOH v. DREHER (January 2019) p. 10

In this case the evidence shows that Forks Outfitters cashed a Tribal check for Ms. Dreher in the amount of $878.49. Ms. Dreher cashed that same check earlier at a local bank. A few days after, she was contacted and informed by Forks Outfitters that the check it had cashed had been cashed earlier. Ms. Dreher repaid Forks Outfitters $879.40, plus $40 for costs.

The record does not establish that Forks Outfitters is located within the exterior boundaries of the Hoh Reservation, as alleged in the amended complaint. Moreover, there is no evidence that Forks Outfitters is within the Hoh Tribe’s territorial jurisdiction as defined in Title 1, Section 1.2.3. Because there was no evidence establishing the crime occurred within the territorial jurisdiction of the Hoh Tribe, the Tribe failed to prove beyond a reasonable doubt the essential element of subject matter jurisdiction.

The trial court concluded that the jurisdictional element was established because the Tribe proved the victim was the Hoh Tribe. However, even if the Tribe was a victim, that fact does not confer subject matter jurisdiction. To prove subject matter jurisdiction, it was necessary for the Tribe to present sufficient evidence that the offense occurred within the territorial jurisdiction of the Hoh Tribe. It failed to do so.

The Tribe failed to meet its burden to prove an essential element of the offense, that it occurred within the territorial jurisdiction of the Hoh Tribe. Therefore, there was insufficient evidence that the trial court had subject matter jurisdiction over the offense. We reverse the conviction and order the case dismissed.

Although we reverse and dismiss based on the Tribe’s failure to prove that the offense occurred within the territorial jurisdiction of the Hoh Tribe, we take this opportunity to address the validity of the amended complaint. Under Title 3, Section 3.1.1 states, in relevant part, “Except as provided in Section 3.1.18, no complaint shall be valid unless it bears the signature of the complaining witness or tribal prosecutor and is witnessed by a judge, clerk of the court, or notary public.” ⁸ The current practice, followed in this case, where the complaint is only signed by the prosecutor and is not witnessed by a judge, clerk of the court, or notary public does not comply with Section 3.1.1. Under the plain language of the code, a complaint that is not witnessed by a judge, clerk of the court, or notary public is not valid. If, as the Tribe contends in its brief, the reasons for this requirement are no longer necessary, the Tribe’s legislative body should amend the code.

Our ruling reversing the conviction and ordering the case dismissed makes it unnecessary to address the other issues raised by appellant in this appeal.

CONCLUSION

The Tribe failed to prove an essential element of the offense, that it occurred within the boundaries of the Hoh Reservation as alleged in the amended complaint or within the territorial jurisdiction of the Hoh Tribe as that is defined under Title 1, Section 1.2.3. Accordingly, we

17 NICS App. 7, HOH v. DREHER (January 2019) p. 11

reverse Ms. Dreher’s conviction for attempted theft in the second degree and remand to the trial court to dismiss the case with prejudice.

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

Amended Complaint, at 6.

Id. at 6.

Trial Exhibit 1, Certificate of Indian Blood.

Brief of Appellant filed on 8/23/2018. Appellant did not include page numbers on her brief. The recommended practice is to number the pages.

Decision, file date 1/2/2018, at 4.

Id.

Id. at 6.

Title 3, Section 3.1.18 addresses citations issues by law enforcement.