1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990)

IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS

MUCKLESHOOT INDIAN RESERVATION

AUBURN, WASHINGTON

Muckleshoot Indian Tribe v. Loretta Moses

No. MUC-CrF-7/88-145 (April 19, 1990)

SUMMARY

The appellant raised a number of issues in her appeal from a conviction of being accompanied by an unauthorized person in the exercise of tribal fishing rights. The Court of Appeals held that the tribe did not violate appellant's tribal fishing rights by not providing for common law spousal fishing privileges. Further, there was not sufficient evidence to support her claims that the tribe's prohibition against non-member fishing discriminates against tribal women, and violates the Indian Civil Rights Act in that fewer tribal women than men can exercise fishing rights without the assistance of nonmember spouses, and that her common law spouse was exercising his Yakima Indian treaty rights while fishing with appellant in Muckleshoot tribal waters.

Appellant also failed to show that tribal law enforcement officers did not exercise reasonable discretion by allowing state fisheries enforcement officers to cite appellant for fishing in closed waters when the state officers arrived first, and tribal officers cited appellant for a specific violation of tribal law. Further, the failure to cite appellant for a possible violation of tribal law, when state officers cited her for the same offense under state law, did not rise to a cession of tribal jurisdiction over a subject matter within the province of the tribe.

The Court of Appeals found that there was ample evidence at trial to support a conviction, as adherence to what is fundamentally fair is sufficient to affirm a conviction where the tribe has set no specific standard of review for criminal cases.

FULL TEXT

Before:	Elbridge Coochise, Chief Justice; Hollis Chough, Justice; and Rosemary Irvin, Justice.
Appearances:	Thomas P. Keefe, Jr., for the Appellant; Ric Kilmer of the Northwest Intertribal Court System for Appellee.

1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990) p. 100

IRVIN, Justice:

ACTION

The appellant appealed a conviction finding her in violation of section 6.11.05 of the Muckleshoot Fishing Ordinance, which prohibits a tribal member from being accompanied on a boat being used in the exercise of tribal fishing rights by any person not authorized under tribal law to be on board that vessel.

FACTS

On July 13, 1988 the appellant Loretta Moses, an enrolled member of the Muckleshoot Indian Tribe was exercising her fishing rights. On board her fishing vessel was Andy Sohappy, a Yakima Indian, whom appellant considers to be her common law husband.

Waters were closed by regulation at 3:00 a.m. that day. The Appellant arrived at her net at or about 4:26 a.m. and was cited under section 6.11.05 of the Muckleshoot Fishing Ordinance by the Muckleshoot tribal fisheries patrol even though state fisheries enforcement officers had begun to pull her net. The state fisheries officer confiscated all fish in the net.

On August 10, 1988, after trial, the appellant was found guilty of violating section 6.11.05 of the Muckleshoot Fishing Ordinance by Judge LaFountaine.

The issues presented for decision by this Court are:

1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990) p. 101

the appellant for "fishing in closed waters" by allowing the Washington state fisheries enforcement officers to cite the appellant for "fishing in closed waters?"

I. GUARANTEE OF SPOUSAL FISHING RIGHTS AND TRIBAL REGULATION OF THE FISHERY

The right to be assisted in the exercise of treaty fishing rights was recognized in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), 520 F.2d 676 (9th Cir. 1975), cert. denied 423 U.S. 1086 (1976):

A treaty right fisherman may secure the assistance of other tribal fishermen with off-reservation treaty fishing rights in the same usual or accustomed places, whether or not such fishermen are members of the same tribe or another treaty tribe, and a treaty right fisherman may also be assisted by his or her spouse (whether or not possessing individual treaty rights), forebears, children, grandchildren and siblings. Id. at 412.

The treaty fishing rights are individual to each member: The treaties reserved rights, however, to each individual Indian, as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved for exercise "in common with citizens of the Territory."

However, the recognition of the individual treaty rights by the United States was through tribal membership:

The Plaintiff Muckleshoot Tribe is one of the holders of the right of taking fish secured to the Indians of the Treaty of Point Elliott and the Treaty of Medicine Creek and it may authorize its members to exercise the right within the limits elsewhere prescribed herein with respect to the scope of the right. Id. at 401.

Further, no tribal member can exercise his or her treaty fishing right off reservation unless his or her tribe is regulating the fishery in compliance with Court established requirements:

... [A]ny one of the plaintiff tribes is entitled to exercise its governmental powers by regulating the treaty right fishing of its members without any state regulation thereof; PROVIDED, however, the tribe has and maintains the qualifications and accepts and abides by the conditions stated below. If, as to any plaintiff tribe, anyone of such qualifications and conditions is not determined by the court in this decision on the evidence in this case, establishment

1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990) p. 102

of the qualifications and conditions of each other plaintiff tribe shall be determined either to the satisfaction of both Fisheries and Game, or upon hearing by or under direction of the court. When the qualifications and conditions of a tribe have been fully established in the manner indicated, that tribe shall be relieved of state regulation except to the extent specified in the below stated conditions. Failure of a tribe either to maintain its required qualifications or to abide by and adhere to prescribed conditions, when established and not promptly corrected, shall suspend self-regulation by such tribe until such time as all required qualifications and conditions are fully established.

QUALIFICATIONS

The tribe shall have:

(a)     Competent and responsible leadership.

(b)     Well organized tribal government reasonably competent to promulgate and apply tribal off reservation fishing regulations that, if strictly enforced, will not adversely affect conservation.

(c)     Indian personnel trained for and competent to provide effective enforcement of all tribal fishing regulations.

(d)     An officially approved tribal membership roll.

(e)     Provision for tribal membership certification, with individual identification by photograph, in a suitable form that shall be carried on the person of each tribal member when approaching, fishing in or leaving either on or off reservation waters. Id. at pp. 340, 341.

Any tribal fishing regulation must reasonably be tied to regulation of the fishery and management of the resource and not be a violation of any individual tribal member's civil rights as prescribed in the Indian Civil Rights Act. The Fishing Ordinance for the Muckleshoot Indian Tribe section 6.11.05, which the appellant was found to have violated, is as follows:

Unauthorized Persons Aboard Boat. No person exercising fishing rights under the authority of this Title shall be accompanied on a boat being used in the exercise of these rights by any person who has not been authorized to fish to be present on such boat under this Title. The Fisheries manager may issue guest permits for a period not to exceed 24 hours to allow a person ineligible to fish to be present on a specific boat to observe, but not to participate in, tribal fishing. A guest permit may be denied if there is reason to believe that the proposed guest will participate in fishing.

1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990) p. 103

Clearly, the facts established at trial that Andy Sohappy was not authorized to be on her boat as a "guest." Further, Andy Sohappy could not have assisted her on her boat according to tribal fishing regulations.

The Muckleshoot Tribe has chosen to limit assistance privileges:

Eligible Fishers Enrolled Members. Only persons enrolled in the Muckleshoot Indian Tribe as defined by the Constitution and Bylaws of the Tribe, and any person who may hereafter become enrolled in the Muckleshoot Tribe are authorized to exercise treaty fishing rights, subject to their compliance with this Title and any regulations adopted pursuant thereto. Muckleshoot Indian Tribe Fishing Ordinance section 6.02.01

Assistance Privileges. Because of management problems the Muckleshoot Indian Tribal Council has determined not to permit the exercise of assistance fishing privileges other than those privileges which are specifically authorized in this Title... Id. at 6.02.03

The appellant's individual right to exercise treaty fishing can only be legally exercised through membership in and regulation by thee Muckleshoot Indian Tribe. The Tribe itself has chosen to limit assistance fishing "because of management problems." Further, there is no showing by the appellant that anything other than management of the resource and regulation of the fishery was involved in the Tribes' decision to more narrowly define the right as allowed in United States v. Washington, supra, 384 F. Supp. at 412. Finally, the Muckleshoot Indian Tribe (since the U.S. v. Washington decision) has not recognized common law spousal fishing rights even when it has recognized legal spousal fishing rights. There is no violation of the appellant's treaty fishing rights by the Tribe's making no provision for common law or legal spousal fishing.

II.

ALLEGATIONS OF DISCRIMINATION AGAINST TRIBAL WOMEN AND VIOLATION OF THE INDIAN CIVIL RIGHTS ACT

The appellant has raised the claim that the Muckleshoot Tribe's prohibition against non-member fishing is discriminatory against tribal women and a violation of the Indian Civil Rights Act in that fewer tribal women than tribal men can exercise their treaty fishing rights without the assistance of a nonmember spouse.

The appellant has raised an issue unsupported by any substantial credible evidence which would allow this Court to make a ruling on such a claim. This court makes no ruling on this issue in this case.

1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990) p. 104

III.

EXERCISE OF YAKIMA INDIAN NATION MEMBER TREATY FISHING RIGHTS

There is no legal support for the appellant's contention that Andy Sohappy was exercising Yakima Indian Nation tribal fishing rights as recognized in U.S. v. Washington, at the time and location when he was assisting appellant in exercising her treaty fishing rights.

IV.

CLAIMED ABUSE OF DISCRETION BY MUCKLESHOOT FISHERIES ENFORCEMENT

The appellant contends that a conviction in tribal court taints her right to defend herself against state regulation violation charges stemming from the same incident and that the tribal officers abused their discretion in enforcement by allowing the Washington state fisheries officers to cite the appellant for "fishing in closed waters."

At the time the appellant arrived at her net, Washington State fisheries enforcement officers had already begun to pull her net. Tribal enforcement chose not to cite the appellant for "fishing in closed waters." The appellant alleges that she was cited for fishing in closed waters in state court.

There is no clear showing under the facts in this case that the law enforcement officers failed to exercise sound, reasonable and legal discretion. They were not the first enforcement officers to the appellant's net. It was reasonable under the circumstances to allow the Washington State fisheries enforcement officers to cite the defendant for "fishing in closed waters" and for the Muckleshoot fisheries enforcement officers to cite the appellant for a violation specific to tribal law.

However, it is the consensus of this tribunal that the better practice for the enforcement of tribal regulations is for tribal fisheries enforcement to cite tribal members for all violations of tribal law, including "fishing in closed waters", so that all violations of state and tribal fishing regulations, if the state should allow, can be turned over to the tribe for prosecution. Tribal members should not simultaneously be subjected to two prosecutions stemming from the same incident, if this can be avoided.

V.

NO CESSION OF TRIBAL JURISDICTION

A mere failure to assert jurisdiction over a possible violation of tribal law, when Washington State fisheries enforcement officers cite for a violation of

1 NICS App. 99, Muckleshoot Tribe v. Moses (April 1990) p. 105

Washington State law, does not rise to a cession of tribal jurisdiction over a subject matter area that is within the province of the Tribe.

Washington State and the Muckleshoot Indian Tribe are two separate sovereigns. Each may use its discretion in citing violators for infractions of its laws. Neither cedes jurisdiction by a reasonable decision, in one individual incident, not to cite an alleged violator. To say as the appellant in this case, that there is a cessation of tribal jurisdiction, is to say that prosecutorial discretion is obviated and the tribe must cite for anything which might plausibly be a violation of a Washington State fisheries regulation. For the appellant to argue that the tribe ceded jurisdiction to Washington state under the facts of this case is a tortured argument and a pale recognition of the inherent sovereignty of the Muckleshoot Tribe.

However, as the court has indicated, the more acceptable practice should be for the Muckleshoot tribal fisheries patrol to cite for all violations of tribal law.

VI.

STANDARD OF REVIEW

It has been pointed out by the appellee that no standard of review for a conviction of tribal criminal law has been established by this Court.

This Court finds that there was ample evidence at trial to support the conviction of the appellant for a violation of unauthorized person aboard boat. In arriving at this decision the court sets no specific standard for review of criminal cases. Tribal Courts are bound by a standard of what is fundamentally fair to tribal people. Tribal Judges are appointed to their positions, as such, confidence is placed in the court to make a reasonable and fair decision of any case before it. This Court finds that in the Court's best judgment, the evidence at trial supports a conviction.