IN RE THE WELFARE OF J.S.T.

20 NICS App. 27, IN RE THE WELFARE OF J.S.T. (October 2022)

IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS

MUCKLESHOOT INDIAN RESERVATION

AUBURN, WASHINGTON

In re the welfare of J.S.T.

C.S.-S., Guardian/Appellant and R.S., Mother/Appellant,

Muckleshoot Child and Family Services (MCFS), Appellee.

NO. MUC-AP-03/22-047 (October 17, 2022)

SYLLABUS*

Tribal Court conducted trial over several months regarding placement of youth. During one open court session, tribal court reached out to two employees of a local hospital about a potential placement facility for the youth. Appellants were not permitted to cross-examine the two employees. Appellants raised multiple issues of rights violations in their appeal. Court of Appeals ruled that tribal court violated the code when it denied appellants an opportunity to cross-examine the witnesses. Court of Appeals reversed lower court’s ruling and remanded for new trial.

Before:	Michelle M. Demmert, Chief Judge; Jerry R. Ford, Associate Judge; Thomas Weathers, Associate Judge.
Appearances:	Stacey Lara, for Appellant guardian and Emily Schultz, for Appellant mother; Dorry Peterson, for Appellee MCFS.

OPINION

Per Curiam

Appellants, the youth’s guardian and mother, appeal multiple rulings and orders of the trial court issued during a six-day trial over several months on the dependency of the minor, J.S.T. We need not address all the issues raised because we find the failure of the trial court to allow cross-examination of certain witnesses to be dispositive. Accordingly, we REVERSE and REMAND for a new trial.

20 NICS App. 27, IN RE THE WELFARE OF J.S.T. (October 2022) p. 28

I. BACKGROUND

The minor is severely disabled. In 2010, the tribal court appointed C.S.-S., the minor’s grandmother, as his guardian. In 2020, the Muckleshoot Child and Family Services (“MCFS”) initiated proceedings to terminate the guardianship because the minor was allegedly not receiving appropriate medical care.

In July 2021, MCFS filed a youth in need of care petition after the minor was admitted to the hospital. The tribal court conducted a trial over several months. During one of the trial sessions, the tribal court telephoned Seattle Children’s Hospital in open court and asked questions of two employees at the hospital about Pope’s Place, a potential placement for J.S.T. The tribal court refused to allow the parties to cross-examine the two employees. At the end of that session, the tribal court ordered the youth placed at Pope’s Place over the objections of the guardian and the mother. The mother and guardian now timely appeal.

II. LEGAL DISCUSSION

The mother and guardian raise several issues on appeal, including the law that governs, the admissibility of certain evidence, the presence of witnesses in the courtroom, the placement preferences under tribal law, and the failure to allow cross-examination. We need not address all these issues because we find that the failure to allow cross-examination of witnesses during the trial violated Muckleshoot tribal law and the appellants’ fundamental right to due process.¹

“We review issues of fact under the ‘clearly erroneous’ standard and issues of law under the ‘de novo’ standard.” Baker v. Gourdine, 14 NICS App. 27, 28 (Muckleshoot Tribal Ct. App. June 6, 2016).² The violation of a right such as due process may constitute either a question of law or mixed question of fact and law, compelling a de novo standard of review. See Lone Bear v. Fort Peck Tribes, 2016 WL 7047756 (Fort Peck Ct. App. Aug. 25, 2016); Jackson v. Enrollment Dep't, Tribal Council for Confederated Tribes of Grand Ronde Cmty. of Oregon, 2014 WL 7684858 (Grand Ronde Tribal Ct. Sept. 15, 2014); Magee v. Mashantucket Pequot Gaming Enter., 2007 WL 2728333, at *4 (Mashantucket Pequot Ct. App. Aug. 31, 2007); Synowski v. Confederated Tribes of Grand Ronde, 2003 WL 25756097 (Grand Ronde Ct. App. Jan. 22, 2003).

Under the Indian Civil Rights Act, no tribe in exercising powers of self-government shall “deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” 25 U.S.C. § 1302(a)(8). “The denial of an

20 NICS App. 27, IN RE THE WELFARE OF J.S.T. (October 2022) p. 29

opportunity to cross-examine a witness is a violation of the party's due process rights under the Indian Civil Rights Act.” Olderman v. Mashantucket Pequot Gaming Enter., 1999 WL 34828489, at *3 (Mash. Pequot Tribal Ct. April 30, 1999), aff'd, 2000 WL 35573099 (Jan. 11, 2000). A tribal court “which does not allow the plaintiff to question witnesses at the hearing, erroneously deprives the plaintiff of his right of cross-examination in violation of the due process clause of the Indian Civil Rights Act.” Johnson v. Mashantucket Pequot Gaming Enter., 1998 WL 35234937, at *8 (Mash. Pequot Tribal Ct. Jan. 21, 1998).

Moreover, Muckleshoot tribal law expressly provides that parties shall be entitled to the right to cross-examine witnesses. See Muckleshoot Tribal Code § 12A.01.100. The failure of the tribal court to allow the parties to cross-examine the two hospital employees was a fundamental error that requires a new trial. We trust the parties will discuss the other issues raised in this appeal and attempt to resolve them while on remand. Accordingly, we REVERSE and REMAND for a new trial consistent with this opinion.

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.

One of the issues between the parties included what version of the law controls. The court below did not receive any documentary evidence as to council action, but relied on argument and assertions. The Muckleshoot Tribal Council's powers include the enactment of ordinances. Documentary evidence of the status of an ordinance should be readily available. (Article VI, Section 1(k) specifices Tribal Council powers, include: [t]o promulgate and enforce ordinances, which shall be subject to review by the Secretary of the Interior, governing the conduct of members of the tribe, and providing for the maintenance of law and order and the administration of justice by establishing a reservation court and defining its duties and powers").

The parties failed to include any standards of review in their briefing. It would help this Court going forward if litigants would provide a standard of review for each issue raised. The parties may look to appropriate federal or state law if no Muckleshoot law is on point. See Muckleshoot Tribal Code § 3.02.070.