2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991)
IN THE LUMMI TRIBAL COURT OF APPEALS
LUMMI INDIAN RESERVATION
BELLINGHAM, WASHINGTON
Lummi Indian Nation1 v. Rick Kinley and Carl Lane
Nos. 89-CRF-0 2385, 2386 (July 24, 1991)
SUMMARY
On August 15, 1989, Lummi Indian Nation members Rick Kinley and Carl Lane were cited by tribal authorities for illegal fishing. They were charged with violating Lummi Business Council Resolution 89-108 (Count I), Lummi Fisheries Regulation No. 8958, ¶2 (Count II), and Lummi Fisheries Regulation No. 89-58, ¶5 (Count III). At trial, the judge dismissed Count I of the charges on the grounds that Resolution 89-108, which prohibited Lummi registered boats in the tribal fishery before August 19, 1989, had not been formally ratified by the full Lummi Business Council at the time the defendants were cited. Count II, which concerned the violation of a regulation stating all fisheries areas are closed unless specifically opened by the Lummi Nation, was dismissed on the grounds that the defendants had been fishing as Washington State citizens under a valid state commercial fishing license. Count III, which concerned a Lummi Fisheries regulation nearly identical to Business Council Resolution 89-108 (see Count I), was dismissed on the basis that the prosecution had submitted no evidence to prove a violation had occurred.
The Lummi Indian Nation appealed the trial court's dismissal of Count I of the charges. The defendants opposed the appeal on the grounds that it violated their right against double jeopardy. The Tribal Court of Appeals, Justice Irvin dissenting in part, ruled in favor of the defendants. It found first, that in the absence of language in the Lummi Tribal Code specifically granting the Nation the right to appeal in a criminal case, the appellate panel had no jurisdiction to hear this appeal. But even assuming that specific statutory authority for the appeal existed, the court found that once the defendants' had been tried and acquitted on Count III of the charges, double jeopardy barred their being re-tried on Count I. This was because the elements necessary to establish a violation under either count were identical under the facts of the case.
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 131
The defendants had also argued for dismissal on grounds that the appellate court convened more than forty-five days after the date the prosecution filed its appeal, in violation of Section 1.8.05 of the Lummi Tribal Code. The Tribal Court of Appeals rejected this argument, applying a balancing test used in a previous decision to find that good cause existed for the delay and that there was no resulting prejudice to the defendants.
FULL TEXT
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Special tribal prosecutor Daniel A. Raas for the Lummi Indian Nation; attorneys Gail Smith and James J. Purcell for Rick Kinley and Carl Lane. |
DECISION AND ORDER OF THE APPELLATE PANEL
HOSTNIK, Chief Justice:
I. BACKGROUND
On August 15, 1989, Carl Lane and Rick Kinley, both enrolled Lummi tribal members, were fishing in the usual and accustomed fishing ground of the Lummi Indian Nation when they were cited for illegal fishing by tribal authorities. The tribal fishery was closed on that date; however, Mr. Lane and Mr. Kinley had obtained state commercial fishing licenses, and were entitled to engage in the all-citizen fishery on the date and in the area at issue. Mr. Lane and Mr. Kinley were charged with violating Lummi Business Council Resolution 89-108 (Count I), and Paragraphs 2 and 5 of Lummi Fisheries Regulation No. 89-58 (Counts II and III, respectively).
Resolution No. 89-108 provides:
No Lummi registered gear shall fish before 8:00 a.m., August 19, 1989, except on days and at times when the Lummi Indian Tribe shall have opened the fishery.
Paragraph 2 of Regulation No. 89-58 provides:
All fisheries and areas are closed unless specifically opened.
Paragraph 5 of Regulation No. 89-58 provides:
No Lummi registered gear shall fish before August 18, except on days and at times when the Lummi Tribe shall have opened the fishery.
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 132
After extensive testimony, defendants moved to dismiss the charges at the conclusion of the prosecution's case. The trial judge determined that Resolution No. 89-108 was not in effect on the date at issue, and therefore dismissed Count I of the charges against each defendant. The charges based on Count III (violation of Lummi Fisheries Regulation No. 89-58, paragraph 5) were also dismissed on the basis that no evidence had been submitted by the prosecution to prove a violation of that section of the regulation. The trial court further ruled that the defendants would have to prove that they had been fishing under valid commercial fishing licenses in order to be exonerated on Count II (violation of Lummi Fisheries Regulation No. 89-58, paragraph 2).
After the defendants presented their evidence, the Tribal Court ruled that the defendants were fishing under valid State of Washington commercial fishing licenses and therefore had not violated paragraph 2 of Regulation No. 89-58. Defendants were therefore acquitted of all charges.
II. THE LUMMI NATION'S BASIS FOR APPEAL
From this decision, the Lummi Nation has appealed. The Nation's main objection to the trial court's decision relates to the basis upon which the trial judge determined that Regulation No. 89-108 was not in effect on the date in question. Extensive testimony was introduced during the prosecution's case to show that Regulation No. 89-108 had been hand-carried to each of the Tribal Council members for signature prior to the date in question. This is commonly referred to as the "walk around" method. This method is used for resolutions passed without a formal meeting of the Lummi Business Council, but with a majority of Council members' signatures attached to a proposed resolution. The full Council, at a regular council meeting, subsequently ratified the resolution. In the case at hand, the date of ratification was after the date that the defendants were allegedly engaged in illegal fishing.
The trial court determined that the "walk around" method of enacting amendments to the criminal fishing code violated the defendants' rights of due process under the Lummi Constitution and under the Indian Civil Rights Act. The trial court held that, at the earliest, the resolution did not become effective until it was ratified, which was subsequent to the date of the alleged violation. The prosecution contends that the trial court did not have jurisdiction to review the method by which legislative enactments are adopted by the Lummi Indian Nation. However, before this court even reaches that issue, several preliminary issues need to be addressed.
III. DELAY IN APPELLATE PROCEEDINGS
The defendants have contended that the matter should be dismissed because the appeal hearing is being conducted more than forty-five days after the date the prosecution filed its Notice of Appeal. This is based upon Section 1.8.05 of the Lummi Tribal Code, which provides:
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 133
Within 45 days from the date of written notice of the appeal, the appellate court shall convene unless delay is warranted by good cause, to hear the case on appeal at such place as may be designated ...
There is no dispute that the Court of Appeals convened more than forty-five days from the date the Notice of Appeal was filed by the prosecution. However, the prosecution contends that good cause exists for the delay.
The prosecution has submitted several affidavits attesting to personnel problems experienced by the Lummi Nation within the Tribal Court administration. Those affidavits show that the two tribal job positions most responsible for the procedural aspects of the Lummi Tribal Court experienced substantial turnover during the summer and fall of 1990. In addition, both positions were vacant for a period during that time frame. Three separate individuals had been employed as the Court Clerk between August 1, 1990 and March 15, 1991.
The failure to conduct the appellate proceeding within the forty-five-day time period does not mandate dismissal. This court has previously ruled on this issue. The appropriate inquiry is to look at the record as a whole and engage in a balancing test. The factors to be taken into consideration are: (1) length of the delay, (2) prejudice to the defendants, and (3) whether the defendants were at fault in causing the delay. Lummi Indian Tribe v. Edwards, 16 Indian L. Rep. 6005, 6007 (1988).
In this case, the defendants have not alleged any prejudice other than the length of time which has elapsed. The defendants' concern is that witnesses' memories may fade with the increased passage of time. However, this factor is relevant only if an appeal is granted in which witnesses are required to testify--a matter which is not at issue in this appeal. Furthermore, even though the delay was not due to the fault of the defendants, the delay was also not due to the fault of the prosecution. Viewing the record as a whole, we hold that good cause exists for the delay which has occurred between the time the Notice of Appeal was filed by the Nation, and the time that appellate proceedings were commenced. Therefore, that delay is not a basis for dismissal of the appeal.
IV. DOUBLE JEOPARDY ANALYSIS
The defendants have vigorously opposed the appeal by the prosecution, contending that the prosecution's appeal violates their right against double jeopardy. The defendants' right against double jeopardy stems from Article VIII of the Lummi Constitution. This Article provides, in part, as follows:
No member [of the Lummi Indian Nation] shall be denied any of the rights or guarantees enjoyed by non-Indian citizens under the Constitution of the United States ...
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 134
The Fifth Amendment to the United States Constitution provides, in part: "No person shall … be subject for the same offense to be twice put in jeopardy of life or limb …”
The Indian Civil Rights Act provides, in part: "No Indian tribe ... shall ... subject any person for the same offense to be twice put in jeopardy." 25 U.S.C. § 1302(3). This provision of the Indian Civil Rights Act is expressly incorporated into the Lummi Constitution. See Constitution and By-Laws of the Lummi Tribe, Article VIII.
Two issues are presented by the double jeopardy defense: (1) does the prosecution have the right to appeal an adverse ruling in a criminal case, and (2) if that right exists, is the prosecution's appeal barred by the defendants' right against double jeopardy? Since the Lummi Constitution incorporates by reference the rights against double jeopardy granted to non-Indian citizens by the United States Constitution, then the interpretations of that right by the United States Supreme Court are also adopted as part of Lummi law (overruling language to the contrary in Edwards, 16 Indian L. Rep. at 6007).
A. Prosecution's Right to Appeal
There is no constitutional right to appeal a trial court decision under either the Lummi or United States Constitution. The right of appeal is purely a creature of statute, and in order to exercise that right, one must come within the terms of the applicable statute. Abney v. United States, 431 U.S. 651, 656, 97 S. Ct. 2034, 2038, 52 L. Ed.2d 651 (1977).
Under traditional non-Indian jurisprudence, a strong policy has developed that the sovereign had no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so. This reflected the concern that individuals should be free from the harassment and vexation of unbounded litigation by the sovereign. This concern is embodied in the constitutional ban against double jeopardy. Arizona v. Manypenny, 451 U.S. 232, 245-246, 101 S. Ct. 657, 1666-1667,68 L. Ed.2d 58 (1981). A presumption therefore exists that the government lacks appellate authority, absent express legislative authorization to the contrary. United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609,36 L. Ed. 445 (1892).
The prosecution contends that the Lummi Code includes specific authorization for the Nation to appeal a criminal case. This argument is based upon Section 1.8.03 of the Lummi Code of Laws, which provides:
Within ten days from the entry of judgment, the aggrieved party may file with the trial court written notice of appeal, and upon giving proper assurance to the court, through the posting of a bond or any other way that will satisfy the judgment if affirmed, shall have the right to appeal, provided that the case to be appealed meets the requirements herein established or by rules of court [emphasis added].
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 135
In addition, Section 4.8.02 of the Lummi Code provides:
Any person aggrieved by the verdict of the jury or the judgment of the Court shall have the right of appeal as provided by Title 1, Chapter 1.8 of this Code [emphasis added].
The prosecution contends that the Nation is a "person aggrieved," and is therefore granted specific statutory authorization to appeal from adverse rulings in criminal cases.
The language of these two Lummi Code sections is not the type of specific statutory authorization that is required. See DiBella v. United States, 369 U.S. 121, 130, 82 S. Ct. 654, 659-660,7 L. Ed. 2d 614 (1962); United States v. Dior, 671 F.2d 351, 354-355 (9th Cir. 1982). In Dior, the court permitted a government appeal based upon 18 U.S.C. § 3731, which provides in part:
In a criminal case, an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution ...
The language relied upon by the Lummi Nation in this case is a general grant of appellate jurisdiction to any party who desires to appeal a trial court decision. That language does not differentiate between civil and criminal proceedings. The language does not specifically grant the prosecution in a criminal case the right to appeal. The general grant of appellate jurisdiction set forth in Sections 1.8.03 and 4.8.02 of the Lummi Code of Laws is insufficient to allow the prosecution to appeal in this case.
B. Double Jeopardy Bars Appeal by Prosecution
Assuming, however, that the prosecution is granted specific statutory authority to appeal from an adverse final decision in a criminal case, the appeal cannot proceed if it runs afoul of the constitutional guarantee against double jeopardy.
A defendant's right against double jeopardy attaches as soon as a judge or jury begins to hear evidence at trial in a criminal proceeding. United States v. Hill, 473 F.2d 759, 761 (9th Cir. 1972); United States ex rel. Gibson v. Ziegele, 479 F.2d 773 (3rd Cir. 1973), cert. denied, 414 U.S. 1008, 94 S. Ct. 370, 38 L. Ed.2d 246 (1973). This right guarantees that an individual will not be prosecuted twice for the same offense.
In the case at bar, both defendants were acquitted by the trial court of violating paragraph 5 of Resolution No. 89-58. That Resolution provides:
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 136
No Lummi registered gear shall fish before August 18 except on days and at times when the Lummi Tribe shall have opened the fishery.
If the appeal were allowed to proceed, the issue before the appellate panel for re-trial would be whether defendants could be convicted of violating Resolution No. 89-108, which provides:
No Lummi registered fishing gear shall fish before 8:00 a.m. August 19, 1989, except on days and at times when the Lummi Indian Tribe shall have opened the fishery.
The elements necessary to be proven for violation of Resolution No. 89-58, paragraph 5, and for violation of Resolution No. 89-108 are identical under the facts of this case, where the violation is alleged to have occurred on August 15, 1989.
The defendants have already been acquitted of violating paragraph 5 of Resolution No. 89-58. If trial were to be permitted on whether the defendants violated Resolution No. 89-108, they would be twice put in jeopardy for the same offense, since the factual elements of both offenses are identical. Although there are two separate statutory offenses represented by Resolution No. 89-108 and paragraph 5 of Resolution No. 89-58, since the elements of both are identical, for double jeopardy purposes, acquittal of one offense represents acquittal from all other charges that could be brought based upon identical elements.
V. CONCLUSION
For the foregoing reasons, this court concludes that the prosecution does not have the right to appeal in this matter. Therefore, this appeal must be dismissed.
In light of the resolution of the issues discussed above, this court does not find it necessary to address the many and substantial remaining issues presented in this appeal.
IRVIN, Associate Justice, concurring in part and dissenting in part:
By enacting Article VIII of the Lummi Tribal Constitution, the Lummi Indian Nation voluntarily obligated itself to go beyond the Indian Civil Rights Act in guaranteeing to its members the same rights as those granted to non-tribal members under the U.S. Constitution. Had the Nation enumerated rights guaranteed to its members without reference to the U.S. Constitution, this jurist would not look to U.S. federal court decisions as binding in defining double jeopardy. Under the facts before this court, however, any statutory provision which would allow the prosecution to appeal would necessarily run afoul of double jeopardy. It is clear that double jeopardy, as defined by U.S. federal court decisions, had attached to the cases at
2 NICS App. 130, Lummi Nation v. Kinley and Lane (July 1991) p. 137
issue. The defendants were tried on criminal charges, evidence was admitted and witnesses were heard prior to the judge entering her decision.
Whether or not there is a statutory right of the prosecution to appeal this case is purely a matter for argument and has no effect on the decision of the issues before this court. This jurist would not go so far as her fellows who say that the right to appeal in tribal court is a creature of statute. There are times in tribal court when custom and fairness will dictate a right which has not been specifically legislated. The matter at hand, however, is not a case in which such an analysis can be applied. Any appeal of this case is barred by U.S. constitutional guarantees, as provided by the Lummi Tribal Constitution, to criminal defendants against double jeopardy.
The Lummi Indian Tribe changed its name to the Lummi Indian Nation in January of 1991.