17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019)
IN THE SNOQUALMIE TRIBAL COURT OF APPEALS
SNOQUALMIE INDIAN RESERVATION
SNOQUALMIE, WASHINGTON
Snoqualmie Indian Tribe, Petitioner/Appellant,
v.
Carolyn Ann Lubenau and Sharon Louise Frelinger, Respondents/Appellees.
NO. SNO-CR-2018-0427 (October 22, 2019)
SYLLABUS*
Two former council members were charged with official misconduct and misuse of tribal funds. The legal capacity of the room within which the trial was to be held was changed from thirty-three persons to sixteen persons shortly before trial. Trial court held that room was too small to provide public trial and dismissed matter with prejudice. Majority of the Court of Appeals ruled that trial court committed error when it concluded the capacity of the room was a sufficient violation of the Constitutional right to public trial and that the trial court failed to consider several factors that could have avoided a violation of this Constitutional right. Dissenting judge argues court may have lost subject matter jurisdiction when Council passed resolution to cease and stop all current and future court actions against the two former councilmembers. Dissenting judge disagrees with entering an opinion regarding decision making of trial court judge and that matter should be remanded for court to make ruling on subject matter jurisdiction. Court of Appeals REVERSED trial court decision and REMANDED for trial setting.
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Before: |
Lisa L. Atkinson, Chief Judge; Daniel A. Raas, Judge; Randal E. Steckel, Judge. |
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Appearances: |
Jordan Stephens, for Appellant; David Smith, for Appellee Lubenau and Hunter Abell, for Appellee Frelinger. |
OPINION
Raas, J., in which Atkinson, C.J., concurs:
I. INTRODUCTION
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 48
The Snoqualmie Tribe charged both its former Chair of the Snoqualmie Tribal Council. Carolyn Ann Lubenau, and its former Vice Chair, Sharon Louise Frelinger, with one count of Official Misconduct1 and one count of Misuse of Tribal Funds2 based on conduct that occurred during the time they served in office. After substantial pretrial activity, the cases were set for trial on April 3, 2018. The Tribal Court found, as discussed below, that the legal capacity of the room within which the trial was to be held, was changed from thirty-three persons to sixteen persons shortly before April 3. The Defendants were informed of this change the night before trial. With a legal capacity of sixteen people, the Tribal Court found that only five seats were available for the tribal public, including the families of the defendants, to observe the trial. The Snoqualmie Constitution guarantees each defendant the right to a public trial. The Tribal Court ruled that holding trial in a room that only would allow five members of the public to observe the trial violated the guarantee of a public trial, and, under the circumstances of this case, dismissed the charges with prejudice. The Snoqualmie Tribe timely appealed.3
II. STANDARDS OF REVIEW
Findings of Fact made by the Tribal Court are reviewed to ascertain that each challenged finding is supported by substantial admissible evidence in the record. Fern v. Torres, 6 NICS App. 200, 202 (Chehalis, 2004). Review of a Motion to Dismiss decided on constitutional grounds is de novo. Kempf v. Snoqualmie Tribe, 14 NICS App. 1, 4 (Snoqualmie, 2014), Lomeli v. Kelly, 12 NICS App. 1, 6 (Nooksack, 2014) (on appeal from a trial court’s rulings on subject matter jurisdiction, tribal sovereign immunity and motions to dismiss a complaint review is de novo).
III. APPLICABLE LAW
Section 11 of the Snoqualmie Judiciary Act (Snoqualmie Tribal Code Section 3.1.11) provides that the Snoqualmie Courts, in the absence of Snoqualmie law, shall apply these laws, in this order: (a) The laws of other Indian Tribes, (b) Federal statutory law, and (c) State (presumably Washington) statutory law. Section 16 of the Snoqualmie Judiciary Act mandates the use by this Court of the Federal Rules of Appellate Procedure. Section 7.0 of the Snoqualmie Rules of Court require that the Tribal Court use the Federal Rules of Criminal Procedure on criminal cases.
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 49
Article 11, Section 1.6 of the Snoqualmie Constitution and the Indian Civil Rights Act, 25 U.S.C. Sec. 1302(a)(6), each guarantee a defendant the right to a public trial.
Despite the vigorous advocacy of all parties that federal case law interpreting federal constitutional rights should be imported into Snoqualmie jurisprudence, the interpretation of the Snoqualmie Constitution regarding Snoqualmie Constitutional rights and remedies for a violation of constitutional rights is dependent on the Constitution and Code of the Snoqualmie Tribe and its tribal culture. As this Court declared in Kempf:
We believe the hallmark of tribal self-government is a tribe’s authority to make its own laws and to independently interpret and implement those laws. See, Puyallup Tribe v. VanEvery, 8 NICS App. 85, 89 (Puyallup Tribal. Ct. App. 2008) (tribal courts not bound by federal court interpretation of constitutional rights); Plummer v. Plummer, 17 Indian L. Rep. 6151 (Navajo 1990), (same); see also, Santa Clara Pueblo , 436 U.S. 49, 55 (1978) (Indian Civil Rights Act’s provisions need not have the same substantive meanings as their sister terms in the Bill of Rights because of the federal government’s goal to preserve "Indian self-government" and protect the "tribe's ability to maintain itself as a culturally and politically distinct entity."). It is our duty and authority to independently interpret the Snoqualmie Constitution and Snoqualmie laws. CONST. Art. X § 3.
The Hudson (Hudson v. Hoh Tribe, 2 NICS App. 160, 163 (Hoh, 1992)) court held it was “compelled” to interpret the redress of grievances clause of the Hoh Tribal Constitution in the same manner as the similar First Amendment right is interpreted by the United States Supreme Court. We do not find any language in the Snoqualmie Constitution or its codes that requires the Tribe’s courts to adopt the Supreme Court’s interpretation of provisions in the United States Constitution that are similar to provisions in the Snoqualmie Constitution. Unlike the Hudson court we are not “compelled” to slavishly adopt a federal court’s interpretation of similar federal constitutional or statutory provisions.
Kempf, supra, 14 NICS App. at 8
Thus, federal precedents, while they may be helpful, are not binding upon the Snoqualmie Tribe or this Court.
IV. TRIBAL COURT FINDINGS OF FACT
The Tribal Court made these Findings of Fact:
1. On March 7, 2018, the Court issued an Order setting these cases for a bench trial from April 2 to April 5, 2018. The start date of the trial was later changed to Tuesday, April 3, 2018 at 1:00 p.m.
2. The Defendants are Carolyn Lubenau and Sharon Frelinger. Ms. Lubenau is the former Chair of the Snoqualmie Tribal Council. Ms. Frelinger is the former Vice-Chair of the
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 50
Snoqualmie Tribal Council. Both were charged with one count of Official Misconduct and one count of Misuse of Tribal Funds.2 The charges are based on conduct alleged to have occurred while they were serving on the Tribal Council.
3. On Friday, March 30, 2018, the Court held a motion hearing at the Snoqualmie Tribal Court with all parties present. During the hearing, the Court confirmed with the parties whether they would be ready to proceed with the trial on April 3, 2018, if the motions to dismiss were denied. They all agreed they would be. Anthony Zackuse was in the courtroom providing security during the hearing. Mr. Zackuse works for the Snoqualmie Tribal Public Safety Department and provides security for the Court when it is in session.
4. On Monday, April 2, 2018 at 12:30 pm, by teleconference with the parties, the Court issued rulings denying four defense motions to dismiss and ruled on motions in limine. The Court confirmed that the case would proceed to trial on Tuesday, April 3, 2018 at 1:00 pm. All parties confirmed they were ready for trial.
5. On Monday, April 2, 2018 at 3:38 pm, John Cooper, Building Official, sent an email to Anthony Zackuse informing him that the maximum occupancy load for the Snoqualmie Tribal courtroom was 16 people. Prior to Mr. Cooper’s redetermination the maximum occupancy load was 33 people.
6. Mr. Zackuse testified that he had concerns when he first saw new room capacity signs for 33 persons placed at the entrance of the courtroom, which would have been in late February 2018. He told his supervisor.
7. Eastside Fire Department set the courtroom capacity at 33 persons. There were two blue signs first posted for the February 23, 2018 court date at the courtroom entrance with the occupancy capacity at 33 persons.5 It is unknown who posted the signs.
8. On April 2 at 6:21 pm, the Chief of Police for the Snoqualmie Tribe sent an email to the Tribal Prosecutor stating, “Please see the occupancy load verification by Mr. Cooper. The signs in the court room will be updated prior to the hearing starting tomorrow.” The Chief of Police was on the prosecutor’s Witness List for this trial.
9. The Clerk of Court, among others, was copied on the email to the Tribal Prosecutor. This was the first time that she was made aware that the occupancy load of the courtroom was being re-evaluated and changed.
10. On Tuesday, April 3, 2018 at 12:35 pm, the Chief of Police sent an email to the Clerk of Court and Tribal Prosecutor, and copied others, informing them that “the maximum occupancy of the Snoqualmie Tribal Court Room is made by the Building Official from the City of Snoqualmie.” The email goes on to explain “The Snoqualmie Tribal Public Safety staff reached out to the [sic] city of Snoqualmie early last week to ask them to verify the maximum occupancy.” The reason for the request for the re-determination was explained as being for “first and foremost the safety of the visitors and staff that may occupy the Court Room at any time.” The
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 51
email also explained the “contact was to ensure we are within correct and lawful guidelines based on other deficiencies discovered throughout the Tribal Center recently.”
11. On April 3, 2018, the room capacity sign at the entrance of the courtroom was changed from 33 persons to 16 persons.
12. On April 3, 2018, the Clerk of Court went to the lobby of the building housing the Court. She estimated there were 20 members of the public who wanted to observe the trial. She estimated there were 9 witnesses in the hallway outside the courtroom.
13. In the courtroom on the day of trial, the people necessary to be in the courtroom were the Clerk of Court, judge, two defense attorneys, two defendants, the prosecutor and his assistant, and a security officer. Then there would be one witness. There was another security officer outside the courtroom, who would presumably enter the courtroom if needed. That totals 11 people. With the courtroom capacity now set at 16 people there would only be room for five other people.
14. For gallery seating the courtroom has two long wooden benches approximately 11 feet long each and also six or seven chairs located at the back of the courtroom.
15. After the scheduled start of the trial, the Clerk of Court contacted the Tribe’s General Manager to locate another room big enough to hold the trial and accommodate public access. The General Manager could not locate a room of sufficient size, or an available room at the Tribal Administration complex or at the Tribe’s casino facility.
Each of these Findings of Fact is supported by evidence in the record. They are therefore accepted as true on appeal.
V. THE TRIBAL COURT RULINGS
A. Violation of the Snoqualmie Constitution’s Guarantee of a Public Trial
The Tribal Court concluded as a matter of law that the above facts demonstrated a violation of the Snoqualmie Constitution’s guarantee of a public trial. It articulated these purposes of a public trial:
The right to a public trial is a right guaranteed by the Snoqualmie Tribe’s Constitution. The right to a public trial provides the public with the opportunity to hold the judicial system accountable to perform its duties in a just and fair manner. It is an opportunity for the public to observe the workings of the Tribe’s judicial system and learn how the trial process works. The right to a public trial protects the defendant from arbitrary and unjust actions, because the trial process is open to public scrutiny. The defendant has a right in a public trial to have family and friends attend the trial. The right to a public trial protects the defendant by allowing for an open forum in which members of the public are able to observe and bear witness to ensure the trial process is fair.
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 52
Tribal Court Ruling and Order of Dismissal, p. 5
There are two purposes of the public trial: the public purpose of transparency in the administration of justice and the private purpose protecting the defendant from arbitrary and potentially unjust actions. Other tribal courts have also articulated the dual public and private aspects of Constitutional guarantees of public and speedy trials. See: Jones v. Tulalip Tribes, 6 NICS App. 187, 188-9 (Tulalip, 2004). Both of these considerations are at their height in this case, where the defendants were elected tribal officials accused of misconduct involving their official duties.
[This Court has] the duty and responsibility to interpret and construe the Snoqualmie Constitution and its laws. See, CONST. Art. X § 3 (“The Courts of the Snoqualmie Tribe shall have the power to: (a) Interpret, construe and apply the Constitution, laws and regulations of the Tribe.”). Our primary duty in interpreting a law or constitutional provision is to discern the intent of the drafters. Lomeli v. Kelly, 12 NICS App. 1, 10 (Nooksack Tribal Ct. App. 2014); Cummings v. K’ima: W Medical Center,12 NICS App. 79, 82, (Hoopa Valley App. Ct. 2014); Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). The starting point must always be the plain language and its ordinary meaning. Cultee at 70; see, Martin v. Hunter's Lessee, 14 U.S. 304, 326 (1816) (constitutional provisions are given their plain and ordinary meaning). 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).
Kempf, supra, 14 NICS App. at 5.
A public trial of former tribal officials accused of official misconduct is not possible under the Snoqualmie Constitution when only five seats are available for persons not required for the trial.4 Review of the record, the transcript of the testimony taken by the Tribal Court prior to its ruling and the arguments of the parties on appeal shows that the both the public’s and the defendants’ constitutional rights to a public trial would have been denied if the trial were to be held in the room in which trial was scheduled.5 Having found violations of Constitutional rights, the Tribal Court considered appropriate remedies.
B. The Tribal Court’s Remedy for the Constitutional Violation
The Tribal Court considered four possible remedies for this violation of the Snoqualmie Constitution:
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 53
1. Ignore the Constitutional violation. The Tribal Court properly dismissed this ‘remedy’ out of hand;
2. A short recess to move the trial to a larger room. After a short recess, the General Manager of the Tribe was unable to locate a larger room to which the trial could be moved. FF 15. A possibility of rotating witnesses and tribal members in and out of the too small courtroom was properly rejected because it would not allow any one member of the public to observe the entire trial, let alone several members. Implicit in this ruling is the correct conclusion that a public trial means that individual Snoqualmie members must be able to observe the entirety of a trial in order to fulfill the public’s right to a public trial.6 The Tribal Court also held that the constant movement of witnesses and observers in and out of the courtroom would be too disruptive of the trial. This is well within the courtroom management power of the Tribal Court;
3. Continue the trial. The Tribal Court noted that the Defendants would not agree to a continuance in order to locate a larger courtroom. Ruling and Order of Dismissal, Docket #77, at 7. It then found that the Defendants’ right to a public trial had been violated. The Tribal Court then held that the violation of Defendants’ right coupled with the inability to find a larger courtroom made a continuance inappropriate; or
4. Dismiss the charges. The Tribal Court acknowledged that the timing of the formal change in the capacity of the court room may have been a coincidence, but it concluded that the failure of the Department of Public Safety to inform the Court Clerk of its concerns regarding permissible occupancy until the actual eve of trial deprived the defendants of their right to a public trial. The Tribal Court dismissed the charges with prejudice.
VI. DISCUSSION
Again, the Tribal Court’s conclusions of law regarding the constitutional violation and the choice of remedy for this constitutional violation are reviewed de novo, or without any deference to the Tribal Court’s conclusions.
The facts of this case establish that the right of the defendants and the right of the Snoqualmie Tribe and its members to a public trial would have each been violated if the trial were to have been held in a courtroom that was too small to provide public access. But was the Tribal Court’s analysis of its choices regarding the too small courtroom correct?
A. The situation the Tribal Court Faced.
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 54
The Tribal Court found as a matter of law that the courtroom in which the trial was scheduled was too small to provide a ‘public trial” as guaranteed by the Snoqualmie Constitution. There was no room available to which the trial could be moved. FF 15. The Tribal Court concluded that this situation violated the Constitutional right to a public trial and proceeded to examine the remedies available to the Court. The Tribal Court did not take several factors into consideration.
B. Defendants’ “Waiver” of Their Right to a Public Trial.
The Tribal Court noted that the Defendants did not agree to a continuance. It did not assign any particular weight to this statement, but two possibilities are evident. Initially, it may be a simply an understandable litigation position advantaging the Defendants who were seeking a dismissal, and thus given such weight as any other argument in support of a litigant’s position. Or it raises the issue of a violation of the Defendants’ right to a speedy trial guaranteed by the Snoqualmie Constitution. The Tribal Court only mentioned the “public trial” right and not the “speedy trial” Constitutional right found in the same sentence of the Constitution.7 Thus it apparently considered Defendants’ position a litigation tactic. The extent to which this position influenced the Tribal Court is not clear, but in light of the totality of the case, the import given it is of little consequence in this Court’s decision.
C. The Expected Length of the Trial
This trial was always going to last several days. In the March 7, 2018, Order, Docket #38, Clerk’s Record p. 418, the Tribal Court set a four-day trial to begin on Monday, April 2. 2018, and continue through April 5, 2018. Court would convene on that Monday at 10:00 am with argument and decision on pre-trial motions, to be followed by the trial. Docket #38, p. 418. Trial was then rescheduled to begin at 1:30 p.m. on the following day. Finding of Fact (FF) 1, quoted above. The Tribe had listed twelve witnesses, Docket #67, Clerk’s Record, p.121-2. Defendant Lubenau, in addition to agreeing to a four day trial, had obtained a subpoena duces tecum requiring the law firm for the Tribe to produce records at her counsel’s office late in the afternoon on the day trial was originally scheduled to start, Docket #66, Clerk’s Record, p.123-4, indicating that she, at least, could require more trial time than originally anticipated.
All parties expected a multiday trial and presumably the Tribal Court, the parties and their counsel, the witnesses and interested observers had reserved Monday, April 2, through Thursday, April 5, on their calendars. Indeed, experienced judges and counsel know that trial time is always approximate, and, with the rescheduling of the trial first to Tuesday, April 3, 2018, and then to Tuesday afternoon, all would have expected that the trial could well last into Friday, April 6. The voluminous pre-trial filings show that defendants were receiving the zealous advocacy that they deserved and that they were presumably prepared to mount a similarly thorough trial defense.8
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 55
D. A Continuance to a Date Later in the Week of April 2, 2018.
FF 15 and the testimony upon which it is based are unclear if the General Manager was unable to locate a room large enough to accommodate the trial for that day, April 3, 2018, or unable to locate a satisfactory room for the three- or four-day trial. Verbatim Report of Proceedings of April 3, 2018, p. 17, ll 2-10. If the former, then the Tribal Court failed to ask whether a larger room was available for the remainder of the trial days. If the latter, then the Tribal Court could have continued the trial until the next day and adjusted the trial schedule to meet the needs of the Court and the parties. But the Tribal Court did not consider this alternative.
E. The Tribal Interest in a Public Trial.
The Tribal Court’s explanation of the history and importance of the Tribe’s right to a public trial is incomplete. The Coast Salish culture, in which the Snoqualmie historically share, formal enforcement of societal standards through traditional processes has been, to a large extent, modified by adoption of a judicial system mirroring that of the United States and the State of Washington. However, the custom of community persists at General Council meetings at which important questions are discussed and the will of the General Council is declared. Snoqualmie Constitution, Art. III, Sec. 3(d). In many ways, the Tribe’s right to a public trial is the descendant of these meetings.
This trial had generated substantial interest in the Snoqualmie community. During the discussion of what to do as a result of the too small courtroom, the Court Clerk estimated that twenty members of the tribal public who wanted to observe the trial were in the lobby of the building where the court room was located. FF 12.
The Tribal Court failed to give this tribal interest appropriate weight in its decision in this case.9
F. A Jurisdictional Question
A court must always examine whether it has personal and subject matter jurisdiction over the cases before it.
While this case was pending on appeal, the Snoqualmie Tribal Council, following the recommendation of the Snoqualmie General Council, apparently enacted Resolution 80-2018.10 On its face this ‘Resolution’ instructs the Prosecutor to discontinue all prosecutions against the Defendants. The Tribal Court has held in Snoqualmie Tribe v. Lubenau, Cause No. SNO-CR-
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 56
2018-0703 (Lubenau II), that this Resolution was ineffective to remove the charging discretion of the Prosecutor found in the Judiciary Act. Defendants’ appeal of this ruling was dismissed when the Prosecutor withdrew its appeal of the Tribal Court’s dismissal of the underlying charges. Notwithstanding the problems with taking judicial notice of this document, the Tribal Court in Lubenau II and the parties to that case (who are the same parties as here) all treated it as if it were an official record and a copy of a duly enacted Snoqualmie Resolution. If a properly authenticated copy of Resolution 80-2018 is presented to the Tribal Court in a challenge to the Tribal Court’s subject matter jurisdiction, then the Tribal Court will need to examine its jurisdiction to hear this case in light of this Resolution enacted while this case was on appeal. When the Tulalip General Council’s and Tulalip Board of Directors’ actions purported to change the law applicable to a pending case, the Tulalip Court of Appeals carefully examined the processes used by the General Council and the Board of Directors to see if the requirements of Tulalip law to amend ordinances were followed. C.W. v. The Tulalip Tribes, 15 NICS App. 6, 9-12 (Tulalip, 2017)
VII. CONCLUSION
The Tribal Court held that the eve of trial disclosure of the legal capacity of the room in which the trial was scheduled was too small to provide a public trial. It committed error when it concluded that this was a sufficient violation of the Constitutional right to a public trial such that the charges must be dismissed with prejudice. The Tribal Court failed to consider several factors that could have avoided a violation of this Constitutional right.
The Tribal Court is REVERSED, and this case is REMANDED to for trial setting.11
Steckel, J., dissenting:
While I greatly respect the opinion of my fellow Justices, I have serious concerns that this court possibly lost Subject Matter Jurisdiction due to an action taken by General Council.
One of the most elemental pillars of the law is Jurisdiction and at any point in the life of a case the issue of Jurisdiction can be raised.
In the case at Bar, on May 12, 2018 the General Membership passed a unanimous resolution stating:
“I move that the Snoqualmie tribal council and all associated attorneys and prosecutors cease and stop from all current or further court actions in any jurisdiction involving Sharon Frelinger and Carolyn Lubenau.
I further move that we reimburse Carolyn Lubenau and Sharon Frelinger for all legal costs incurred thus far and compensation for pain and suffering.” This matter passed unanimously.
17 NICS App. 47, SNOQUALMIE v. LUBENAU, Et Al. (October 2019) p. 57
While this Justice is aware that no party has formalized a request challenging Jurisdiction, given the unambiguous language of the General Council Resolution this document is something that cannot be ignored.
With all due candor this Justice has serious questions regarding this resolution such as authenticity, not formally being entered into a court record, concerns of executive overreach, etc.
That being said, this resolution raises immediate and serious questions as to this Courts ability top continue adjudicating this matter. 12
While I concur with the majority opinion that the Trial Court will need to decide at a subsequent hearing the application of this resolution I do not agree that we should be entering an opinion regarding the decision making of the Trial court Judge until the underlying issue, ie Subject Matter Jurisdiction, has been decided by the lower Court.
It is my opinion that this matter be sent back down to the Trial Court Judge to make a determination as to the Scope, Validity, and Application of this resolution and only after that issue is decided do we proceed with the case at bar.
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.
Criminal Code Sec. 13.3
Criminal Code Sec. 13.2
The Tribe timely appealed the day-of-trial dismissal of these charges. While this appeal was pending, the Tribe filed a new charge of Conspiracy, Criminal Code Sec.16.6. Snoqualmie v. Lubenau II, Cause No. SNO-CR-2018-0507, against both Respondents. The Tribal Court dismissed this charge as being filed too long after the conduct giving rise to the offense took place. The Tribe appealed. Defendants Lubenau and Frelinger cross-appealed and subsequently moved to consolidate the appeal in the present case, SNO-CR-2018-0427, with the appeal and cross-appeals in Lubenau II. After substantial briefing that motion was denied. Subsequently the Tribe’s Motion to Dismiss its appeal was granted by this Court. The dismissal removed any jeopardy to the Defendants from the conspiracy charge. The Tribe’s Motion to Dismiss the Cross-Appeals was granted since, as there was no longer any possibility that the charges of conspiracy could be lodged against the Defendants, rendering an opinion on the Tribal Court’s ruling that the General Council and Tribal Council Resolutions would be issuing an advisory opinion. There is nothing in the Tribal Constitution or the Judiciary Act authorizing this Court to give such an advisory opinion. See: Cummins v. K’ima:w Medical Center, 13 NICS App. 79 at 83 (Hoopa Valley, 2014), and see also: Cooper v. Hoopa Valley Tribal Council, 7 NICS App. 42, n. 1 (Hoopa Valley, 2005). However, the issue of the validity and force of these actions is discussed below in Section VI.F. and is the basis of the Dissent.
The minimum capacity of a court room meeting that would provide a public trial will vary from case to case depending on such factors as the number of Court personnel needed, the number of defendants and their counsel, the number of extended family and tribal elders who may wish to witness the trial, the public interest generated by the charges and the identity and status of the defendants or the victims of the alleged crime(s), the general notoriety of the proceedings, and similar factors which the Tribal Court determines bear on the question of the number of persons needed to grant the public access to the trial.
Since the Snoqualmie Constitution is plain and unambiguous regarding the right to a public trial, there is no need to resort to the interpretations of the right to a public trial by other tribal, state or federal courts, See: Judiciary Act, Section 11 (Snoqualmie Tribal Code Section 3.1.11
This opinion does not address the question of whether persons who are not members of the Snoqualmie Tribe or other interested persons, e.g. members of the Snoqualmie community and of the non-tribal community, journalists, tribal employees, federal employees, and any other members of the public are entitled to attend a trial. In this case the Tribal Court held only that the courtroom was too small to allow Snoqualmie members to attend the trial. This decision would be sufficient to establish the Constitutional violation. See: note 4.
The Scheduling Order of January 26, Docket #16, tolled the speedy trial time limit until April 27, 2018. The trial could have been continued until that date without violating the speedy trial rule if the speedy trial rule were important.
The Docket has 76 pretrial entries, totaling over 720 pages.
In appropriate cases, e.g. Indian Child Welfare proceedings, Snoqualmie Indian Child Welfare Act, STC 12.2.9, the tribal interest in a public trial may have been defined by Ordinance. That legislative definition of the tribal interest is not present here.
The copy of the purported Resolution in the record in Lubenau II and the copy separately provided this Court by the Snoqualmie Tribe both lack signatures and other required information to allow this Court (or the Tribal Court) to admit the Resolution as a business record of the Snoqualmie Tribe or to take judicial notice of the Resolution. Section 7.0 of the Snoqualmie Rules of Court provide that the Federal Rules of Criminal Procedure shall govern criminal trials in the Snoqualmie Courts. Fed.R.Crim.P. 27 turns to the Federal Rules of Civil Procedure to set the rules for the admission of official records at trial. Fed.R.Civ.P. 44(a) lists the requirements to prove the existence of an official record, none of which are present here. Nor is an unsigned and incomplete Resolution self-identifying under Federal Rules of Evidence 902(1) or (2) to allow judicial notice to be taken of the ‘Resolution’. We do not decide if the FREs are binding on the Tribal Court.
While not necessarily binding on the Tribal Court, see n.7, above, the guidelines in 18 U.S.C. Section 3161 may be helpful when calculating time limits.
This Justice has never seen a resolution of this kind passed regarding an on-going Court case and it is probable that this issue is a matter of first impression for the Snoqualmie Tribal Court.