1 NICS App. 24, Hoh Tribe v. Penn (June 1988)
IN THE HOH TRIBAL COURT OF APPEALS
HOH INDIAN RESERVATION
FORKS, WASHINGTON
Hoh Indian Tribe v. Glenn Penn
No. HOH-CrF-l0/87-085 (June 28, 1988)
SUMMARY
The defendant-appellant claimed that the trial court committed reversible error in proceeding with a bench trial without the defendant's knowing, voluntary and intelligent waiver of his right to be represented by a lawyer or spokesperson at his own expense, at a trial by a jury of six persons.
The Court of Appeals held that as the right to a jury in this case arose solely under tribal ordinances, once the defendant was advised of such right, he had the burden of initiating action to exercise this right, and having gone forward with a bench trial he waived his right to a jury trial. Further, in accordance with the tribal ordinance, the appellant must pay the costs of appeal where there is no showing of clear injustice to him.
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Stephen J. Hyde, Attorney At Law, for the appellant Glenn Penn; Ric Kilmer, Tribal Prosecutor, for respondent Hoh Indian Tribe. |
DECISION AND ORDER
HOSTNIK, Associate Justice:
This case requires us to decide whether a trial court committed reversible error in proceeding with a bench trial in the absence of a record of a knowing, voluntary, and intelligent waiver of the defendant's right to be tried by a jury of six persons and of the defendant's right to be represented by a lawyer or other spokesperson at the defendant's expense where the defendant was fully aware of those rights. Both the right of jury trial and the right to be represented by a lawyer or a spokesperson are guaranteed by the Hoh Indian Tribe Court Procedures.
The defendant has appealed from a Judgment and Sentencing Order dated March 3, 1988, finding him guilty of a violation of Hoh Fishing Code Section 7.2.1 by having a set net across more than one-third the wetted width of a stream. The offense is not punishable by imprisonment. Defendant was arraigned on
1 NICS App. 24, Hoh Tribe v. Penn (June 1988) p. 25
February 5, 1988. At that time he was notified of his rights, including his rights of jury trial and his right to be represented by a lawyer or spokesperson at his own expense. Choosing not to retain a lawyer or spokesperson, Mr. Penn represented himself at the bench trial which occurred on March 3, 1988. The defendant was found guilty at the trial before a judge and was sentenced to pay a $250.00 fine and suspended from engaging in tribal fishing rights for a period of three consecutive fishing days.
A motion for a New Trial was filed on behalf of the defendant by defendant's present counsel on March 10, 1988. The grounds for the motion were stated to be: (1) the defendant was unaware he had a right to a jury trial; (2) that the defendant was unable to represent himself adequately and needed an attorney to represent him; and (3) certain witnesses were unavailable to the defendant at the trial. The motion was denied by order dated March 23, 1988. Defendant's appeal followed.
I.
RIGHT OF JURY TRIAL
Under Rule W of the Hoh Court Procedure Ordinance, every criminal defendant has a right to a trial by a six-member jury even when charged with an offense not punishable by imprisonment.
This right of jury trial in this case does not arise, because of the Sixth Amendment of the United States Constitution. The Sixth Amendment requires that the Federal government and the several states guarantee to criminal defendant the right of jury trial. It is well established that the Bills of Rights of the United States Constitution does not apply to the Indian tribes. See, e.g., Tom v. Sutton, 533 F.2d 1101 (9th Cir.1976); Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974); and Talton v. Mayes, 163 U.s. 376, 384, 16 S.Ct. 986,41 L.Ed. 196 (1896).
The right of jury trial in this case also does not arise, because of the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq. which provides for a right of jury trial to criminal defendants where the offense is punishable by imprisonment. See 25 U.S.C. § 1302(10). The defendant is not charged with an offense punishable by imprisonment.
The defendant's right of jury trial arises solely, because of Rule W of the Hoh Court Procedure Ordinance, which provides:
Every person accused of a crime in Hoh Tribal Court has the right to trial by a six member jury. Criminal cases shall be heard by a judge unless the defendants ask for a jury trial. A request for a jury trial may be made at arraignment and must in all cases be made at least seven days before the scheduled trial.
Defendant urges this court to adopt a rule requiring the trial court to follow federal and state procedure of affirmative waiver of right of jury trial in
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determining whether or not a jury trial must be held. He argues that a jury trial must be held in this case unless the trial court creates a record showing that the defendant voluntarily, knowingly, and intelligently waived his right of jury trial. For this proposition, he only cites state and federal case law interpreting the right of jury trial under the Sixth Amendment of the United States Constitution. He has no citations to any tribal court case law.
This court declines to adopt a rule requiring that the trial court follow federal and state procedures (Sixth Amendment procedures) in determining whether or not a jury trial shall be held by requiring the trial court to create a record showing that the defendant voluntarily, knowingly, and intelligently waived his right of jury trial.
The defendant fails to realize that the United States and the Hoh Indian Tribe have incongruous history with respect to administration of criminal justice. The United States has a history of slavery, which at times included American Indians, a history of discrimination against its minorities, a history of segregation, and a history of denying American Indians and Indian tribes their basic rights. The Hoh Indian Tribe has no such history and has a separate cultural history respecting human rights of its members.
The Founding Fathers of the United States wisely included a Bill of Rights in the United States Constitution to curb the abuses inherent within the administration of criminal justice within the United States. This court finds nothing in the history of the Hoh Indian Tribe to require the application of the Sixth Amendment and its concomitant procedures to the Hoh tribal court. The court declines to require the trial court to find an affirmative waiver of the right of jury trial before a bench trial can be held.
In this case the trial court at the arraignment properly advised the defendant of his rights in criminal proceedings in tribal court, including the right of jury trial. The defendant was fully aware and understood that he had the right to request a jury trial at arraignment. After being given an opportunity to request a jury trial, the defendant failed to request a jury trial. Up until seven days before trial the defendant still had the right to request a jury trial. By standing trial before a judge without a jury, the defendant lost his opportunity to request jury trial. Today defendant cannot complain that he was denied his right to jury trial.
II.
RIGHT TO BE REPRESENTED BY A LAWYER OR SPOKESPERSON
Under Rule K of the Hoh Court Procedure Ordinance, every criminal defendant has a right to be represented by a lawyer or spokesperson at the defendant's expense in criminal proceedings in tribal court.
The Indian Civil Rights Act of 1968, supra, has similar provision, which reads:
1 NICS App. 24, Hoh Tribe v. Penn (June 1988) p. 27
No Indian tribe in exercising powers of self-government shall: ... (6) deny to any person in a criminal proceeding the right...at his own expense to have the assistance of counsel for his defense. 25 U.S.C.§ 1302(6).
For the purposes of this appeal, the court will assume the tribal right to be represented by a lawyer or spokesperson at the defendant's expense and the right at one's own expense to have the assistance of counsel for his defense under the Indian Civil Rights Act of 1968 are the same.
As stated earlier, the Sixth Amendment of the United States Constitution is not applicable to Indian tribes. Thus, the Six Amendment provision requiring the assistance of counsel in criminal proceedings is not applicable to criminal proceedings in tribal court.
Defendant urges this court to adopt a rule requiring that the trial court follow federal and state procedures (Sixth Amendment procedures) of affirmative waiver of the right of counsel before a criminal defendant can represent himself at trial. He argues that before the right of counsel can be waived, the Hoh trial court must create a record showing that the defendant voluntarily, knowingly, and intelligently waived his right to counsel. For this proposition, he only cites state and federal case law interpreting the right of counsel under the Sixth Amendment of the United States Constitution. He has no citations to any tribal court case law.
For the reasons cited in Part I of this opinion, this court declines to adopt a rule requiring the trial court to follow federal and state procedures (Sixth Amendment procedures) for affirmative waiver of the right of counsel before the defendant can represent himself at trial by creating a record showing that the defendant voluntarily, knowingly, and intelligently waived his right of counsel.
In this case the trial court at the arraignment properly advised the defendant of his rights in criminal proceedings in tribal court, including the right to be represented by a lawyer or spokesperson at the defendant's expense. The defendant was fully aware and understood that he had the right to be represented by a lawyer or spokesperson at the defendant's expense.
After being given an opportunity to request a continuance to consult with a lawyer or spokesperson before pleading to charge, the defendant chose not to consult with a lawyer or spokesperson and chose to enter a not guilty plea and stand trial. Defendant had four weeks to retain a lawyer or spokesperson before trial but failed to do so. At trial, the trial judge asked the defendant whether he was ready to proceed with the trial. The defendant said that he was ready to stand trial. By standing trial before a judge, the defendant lost his opportunity to be represented by a lawyer or a spokesperson at trial. Fully understanding his rights in criminal proceedings, he chose to represent himself at trial.
After being found guilty by the trial court, defendant now complains that he was denied the right of assistance. The record of the trial court does not show that
1 NICS App. 24, Hoh Tribe v. Penn (June 1988) p. 28
the defendant denied his right to be represented by a lawyer or spokesperson at the defendant's expense.
The court cannot find a violation of the defendant's right to be represented by a lawyer or spokesperson at the defendant's expense under Rule K of the Hoh Court Procedure Ordinance. The court also cannot find a violation of the defendant's right at his own expense to assistance of counsel under the Indian Civil Rights Act, supra.
The Judgment and Sentencing Order are affirmed.
III.
COSTS ON APPEAL
The Hoh Rules of Appellate Procedures require this panel to order the losing party to pay the costs of appeal, unless a clear injustice would result. Costs of this appeal will total approximately $350.00.
Considering that the defendant is able to afford to hire a lawyer, the court will order the defendant to pay the appellate costs of $350.00, payable within two months of the date of this decision and order.