2 NICS App. 176, Suquamish Tribe v. Purser (September 1992)
IN THE SUQUAMISH TRIBAL COURT OF APPEALS
PORT MADISON INDIAN RESERVATION
SUQUAMISH, WASHINGTON
Suquamish Indian Tribe v. Randi Purser
No. SUQ-FCR-2/90-3 (September 18, 1992)
SUMMARY
Suquamish tribal member Randi Purser was arrested and issued a citation for violating a tribal shellfish regulation setting a 20 pound limit on the subsistence digging of clams. Purser's case was tried in the Suquamish Tribal Court on April 21, 1990, and the jury found her guilty. She filed a timely appeal, but for reasons not apparent in the record the appeal hearing did not take place until October 29, 1991. At her hearing, Purser moved for dismissal on two grounds: lack of an adequate record of the trial proceedings and violation of her right to a speedy appeal.
The Suquamish Tribal Court of Appeals granted Purser's motion to dismiss. Finding first that the lack of a complete trial transcript made it impossible to rule on the reasonableness of the jury's finding of guilt beyond a reasonable doubt, the appellate panel reversed the trial court decision. Then the panel, balancing the interests of the Tribe against those of the defendant, found that a new trial was not warranted. Factors influencing the decision included: staleness of the evidence, questions of adequate notice regarding the shellfish regulation at issue, the punishment which undergoing an eighteen-month prosecutorial process had already imposed on the defendant, and the importance of holding tribal governments to high standards regarding the protection of individual rights.
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Tribal prosecutor John Sledd for the Suquamish Indian Tribe; Randi Purser appeared pro se, with the aid of Richard Purser. |
2 NICS App. 176, Suquamish Tribe v. Purser (September 1992) p. 177
OPINION AND ORDER
HUTCHINSON, Associate Justice:
I. FACTS
On February 3, 1990, on Dyes Inlet in Bremerton, Suquamish Indian Tribe member Randi Purser was arrested by Washington State Fisheries officers and issued a citation by the Suquamish Fisheries Police for violating the 1989 Off-Reservation Clam and Oyster Regulations Addendum, July 18, 1989, by exceeding the 20 pound limit for the subsistence possession of clams by tribal members. Purser's case was tried in the Suquamish Tribal Court on April 21, 1990, before a jury. At the conclusion of that trial, a verdict of guilty was rendered.
Purser then filed a timely notice of appeal together with a motion for a new trial. The ground stated was that there was insufficient evidence at trial to prove the charges beyond a reasonable doubt. In a consequent hearing on June 12, 1990, the Tribal Court judge denied the motion for a new trial.
For reasons not apparent in the record, there was a delay of more than 15 months between the time the trial judge denied Purser's motion for a new trial and the time her appeal was finally scheduled before this court on September 30, 1991. Purser then moved for, and was granted a continuance. Her appeal was finally heard on October 29, 1991.
II. ISSUES
A. Lack of an Adequate Record
An immediate question facing this court is the issue of the record of the trial.
The Suquamish Tribal Code states that "[t]he court of appeals shall have jurisdiction to hear and determine appeals from final judgments of the trial court of the Suquamish Tribe, and all such appeals shall be tried on the record." Suquamish Tribal Code § 3.2.7 (emphasis added). The Tribal Code further states that "[i]f an appeal is taken, the case shall be tried on the record; provided, that a proper record of the trial has been kept." Suquamish Tribal Code § 3.8.26.1
In an initial examination of the case file, this court found that there was no complete transcript of the trial held on April 21, 1990. Upon inquiry of the
2 NICS App. 176, Suquamish Tribe v. Purser (September 1992) p. 178
Court Clerk it was revealed that only a partial, typewritten transcript of Purser's jury trial had been sent from the trial court to the Tribal Court of Appeals on October 17, 1991. Problems with the tape recording of the trial had made it impossible for the court clerk to furnish a complete transcript.
Appellant Purser now argues that the lack of a complete transcript of her trial makes it impossible to decide this appeal. We agree. After listening to the available master tape recording, it was apparent that there no longer existed any meaningful record of the original Purser trial which would reasonably permit reconstruction of the evidence or judicial conduct.
The Suquamish Tribal Court operates under an explicit statutory mandate that its proceedings be recorded. Suquamish Tribal Code Section 3.5.3 states, "The clerk shall attend and keep a record of the Suquamish Tribal Court and Court of Appeals." In addition, Tribal Code Sections 3.2.7 and 3.8.26, quoted above, establish an implicit statutory mandate that the Tribal Court furnish a record of the proceedings for review on appeal, since these Code provisions require all appeals to be tried on the record "provided, that a proper record of the trial has been kept."
This court has concluded that in the absence of a full and adequate court transcript (written or aural), it would be impossible to rule upon questions arising under the record, particularly as to the reasonableness of the jury's finding of guilty beyond a reasonable doubt. In fairness, then, we must reverse the trial court decision.
It is so ordered.
B. Due Process Right to a Speedy Appeal
After reversing a trial court decision for lack of an adequate record for review, we would normally remand the case for a new trial. Appellant, however, further argues that the long delay between her trial and the hearing of her appeal requires that this case be dismissed on grounds that her right to a speedy appeal has been violated.
Appellant Purser argues that under Section 4.6.5 of the Suquamish Tribal Code--repealed on March 11, 1991, but still in effect on April 21, 1990, the date of her trial--the appellate court is required to convene within forty-five days from the date of filing the written notice of appeal. Since Ms. Purser's written notice of appeal was filed on April 26, 1990, and the court did not convene until October 29, 1991, she argues that her right to a speedy appeal under the Code has been violated.
The text of the repealed section reads:
4.6.5. Appellate Trial. Within forty-five days from the date of filing of the written notice of appeal, the appellate court shall convene to hear the case on appeal at such place as may be designated. A new trial shall be held and court procedures shall
2 NICS App. 176, Suquamish Tribe v. Purser (September 1992) p. 179
be the same as in other cases before the court, except that there shall be no right to trial by jury.
The Code provision the appellant has referenced is a rule of procedure applicable to appeals taken in civil cases. The violation here, however, has criminal sanctions attached and falls within the ambit of the Criminal Code of the Tribe. The Suquamish Criminal Code is silent as to whether there is the same right to a speedy appeal hearing as exists in the Code provisions for a civil trial.
The tribal attorney argues vigorously for a new trial, citing the important tribal interest involved in this matter. This court is then faced with the issue of whether to dismiss the case against the appellant or to remand for a trial de novo.
It is apparent that the law-making body of tribal government has not addressed this problem in the development of its tribal code. There was no guidance provided by tribal resolution or ordinance at the time this matter was considered. Thus we must look to the common law for help.
The absence of statutory guidance has historically provided the rationale for resort to the common law, which itself is linked inexorably to the legal principle of stare decisis. The theory of that doctrine is that when a court has once laid down a principle of law as applicable to a certain state of facts, it will thereafter adhere to that principle and apply it to all future cases where the facts are substantially the same.
We thus considered whether the Suquamish Tribal Court had ever decided a similar issue in a prior case. But there is little precedent available in the history of that court. It is a relatively young court which has long lacked the resources necessary for the growth of reported cases.
Finding no Snohomish Tribal Court case on point, we next looked at how other tribal jurisdictions had dealt with the same question. These other jurisdictions, we found, differed greatly in their approach to this issue. Some tribal courts have followed a strict rule of dismissing cases where the length of delay has been excessive, regardless of whether the tribal court or the prosecution were at fault in causing the delay. See Miller v. Crow Creek Sioux Tribe, 12 Indian L. Rep. 6008 (1984); United States v. Myers, 12 Indian L. Rep. 6003, 6004 (1984). Other tribal courts have weighed additional factors, such as the reason for the delay and prejudice to the defendant, in deciding whether to dismiss a case on speedy trial grounds. See Navajo Nation v. Macdonald, Jr., 19 Indian L. Rep. 6079 (1992); Lummi Tribe v. Kinley, 19 Indian L. Rep. 6027 (1991). In the absence of a clear majority view among these decisions, each of which may reflect circumstances unique to the particular tribal community involved, we do not choose to adhere to anyone of them as precedent.
Under rules established by the U.S. Supreme Court, a criminal defendant's claim for dismissal on speedy trial grounds must survive a
2 NICS App. 176, Suquamish Tribe v. Purser (September 1992) p. 180
rigorous multi-part balancing test. See Barker v. Wingo, 407 U.S. 514, 530 (1972). Implicit, however, in the concept of stare decisis is an understanding that precedent may be relied upon only where all or nearly all factors are otherwise equal. Because the developmental stages and circumstances of federal and state courts are so remarkably different from the Suquamish Tribal Court, decisions of these courts are not reliably relevant to tribal communities. The procedural and logistical requirements of federal and state court systems regularly make delays of months and years not exceptional.1 This is not true in the Suquamish community, nor in tribal court systems in genera1.2 Certainly the Suquamish tribal government had this understanding when they elected to adopt the forty-five-day rule expressed in the Civil Code provision for a speedy appeal hearing.
In the absence, then, of statutory guidance and a reliable precedential path, we will decide this issue by balancing the interests of the Tribe against those of the defendant.
The Tribe, in arguing for a new trial, emphasized the serious responsibility that Indian governments have in fisheries resource protection. This burden is one that they feel is critical in light of federal decisions which gave warning of dire consequences where tribes do not act as conservationists. See United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976), vacated, 443 U.S. 658 (1979); Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969), aff'd in relevant part, 529 F.2d 570 (9th Cir. 1976). The Tribe argued that failure to fully prosecute all violations of the fishing and shellfish regulations would send the wrong message to possible violators, thus weakening the Tribe's ability to regulate the resource and threatening its sovereignty.
Appellant, on the other hand, made a forceful argument for the due process right of fundamental fairness. She noted that she had been through the trial process once; that she had filed her appeal timely; that the extraordinary delays in setting the appeal hearing had not been through any fault of hers; and, that a new trial would place an unfair burden on her because of the unavailability of necessary witnesses and the effect of the passage of time on the memories of those involved.
2 NICS App. 176, Suquamish Tribe v. Purser (September 1992) p. 181
The arguments of both sides were well made and persuasive. But, on balance, it was the decision of this court that a new trial was not warranted. Four key factors were felt to be particularly worthy of note. First was the staleness of evidence resulting from the excessive delay between the time of the alleged violation and the time this appeal was finally heard--not to mention the additional delay resulting from the scheduling of a new trial.
Secondly, during the arguments on appeal it became obvious that at the time of the underlying incident there was a genuine question whether adequate notice of the shellfish regulation at issue had been provided by the responsible tribal agency.
Thirdly, the appellant had been vigorously prosecuted by the Tribe, and through that action had been given stem warning of the consequences of violating tribal fishing laws.
Finally, we took into consideration the fundamental purpose underlying the right to appeal. Unless it can serve to hold government to the highest standards of protection in respect to individual rights, the right of appeal becomes meaningless. To hold tribal governments to such high standards was the congressional intent expressed in the passage of those sections of the Indian Civil Rights Act extending federal constitutional and habeas corpus rights to tribal members. See 25 U.S.C. §§ 1302 & 1303; and see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61, 98 S. Ct. 1670, 56 L. Ed.2d 106 (1978) ("a central purpose of the ICRA...was to 'secure for the American Indian the broad constitutional rights afforded to other Americans,' and thereby to 'protect individual Indians from arbitrary and unjust actions of tribal governments."') (citing S. Rep. No. 841, 90th Cong., 1st Sess. 5-6 (1967)).
Although not a factor in the balancing of interests here, it should be noted also that the continuing health and viability of the Suquamish Tribal Court was of concern to the Tribal Court of Appeals. The Suquamish Indian Tribe must be applauded for the extraordinary efforts it continues to make in providing a tribal forum for enforcement of its laws, and for resolving disputes between its citizens. Those efforts are made at the expense of other important programs.
The expense required to provide new trials, set-overs, and appeals is a terrible drain on limited tribal resources. The desire to shelter tribes from the disruptive economic effects of litigation was an important consideration when Congress "rather than providing in wholesale fashion for the extension of constitutional requirements to tribal governments, as had been initially proposed [in the ICRA], selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments." Martinez, 436 U.S. at 6263.
Although fisheries and shellfish violations are very serious actions which the Tribe should continue to prosecute vigorously, this case was exceptional. A series of misadventures that were the fault of neither the
2 NICS App. 176, Suquamish Tribe v. Purser (September 1992) p. 182
Tribe nor the appellant brought this issue before the Tribal Court of Appeals this day. We do not believe the interests of either party would be well served by bringing this matter back to court for another jury trial.
If the Tribe explicitly recognized a need for a speedy appeal in a civil matter, then surely by doing so it gave implicit recognition to an even greater need in criminal matters, where the possibility of loss of liberty and freedom exists. It is only reasonable to presume that the failure to express that recognition in the Criminal Code came through unintentional omission.
III. ORDER
It is hereby ORDERED that the judgment of the Suquamish Tribal Court be reversed and that the Suquamish Indian Tribe's case against Randi Purser be dismissed with prejudice.
In addition, Section 3.5.3 of the Code, entitled "Duties of the Clerk," states in part: "The clerk shall attend and keep a record of the Suquamish Tribal Court and Court of Appeals ... " while Section 3.5.6, entitled "Copies of Proceedings," states: "Any party may obtain a certified copy of court proceedings from the clerk by payment of the cost thereof."
By "analyz(ing] the reason behind the appellate delay solely in terms of the reasonableness of the government's behaviour in taking and prosecuting the appeal" the Barker v. Wingo test has been used by a majority of the Court to justify the denial of a defendant's motion to dismiss on speedy trial grounds where there was a delay of over seven years in the processing of an interlocutory appeal brought by the government! United States v. Loud Hawk, 474 U.S. 302, 324-25 (1986) (Marshall, J., dissenting).
See, e.g., Wiehl, Indian Courts Struggling to Keep Their Identity, N.Y. Times, Nov. 4, 1988, at 25 ("Evidentiary objections are rarely made (in tribal court], and the rules of evidence are enforced less strictly than in other courts. Discovery is limited to a few days or weeks in a process that usually results in a trial within 60 days of a complaint or arraignment.")