2 NICS App. 190, Tulalip Tribes v. Cultee (October 1992)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
The Tulalip Tribes v. Harry Cultee
No. TUL-CRF-12/91-141, 142, 145, 146 (October 6, 1992)
SUMMARY
Harry Cultee was arrested and convicted for three fishing offenses involving the illegal catching of pink salmon. Contending his trial had occurred more than ninety days from the date of his arraignment, in violation of Tulalip Law and Order Code § 2.21.1, he appealed his conviction on speedy trial grounds. The original trial date had been scheduled within the ninety-day period, but a twenty-day suspension of all court proceedings by the Tulalip General Council had necessitated a continuance.
Applying a balancing test used by the Lummi and Navajo tribal courts, the Tribal Court of Appeals ruled that Mr. Cultee's speedy trial rights had not been violated. The length of the delay was minimal, the appellate panel found, and the cause of the delay was an unforeseen circumstance outside the control of either the defendant or the prosecutor. Although Mr. Cultee had asserted his right to a speedy trial in a timely manner, the absence of any prejudice occurring as a result of the delay, in combination with the aforementioned factors, weighed conclusively against dismissal.
The sentence imposed by the trial judge included a loss of fishing privileges for three fishing days. Responding to a statement by the defendant's spokesperson that he planned to ask the Tulalip Tribes to open a special three-day season for fish of little value so that the defendant might thereby serve his three-day suspension without incurring financial loss, the appellate panel took the unusual step of instructing the trial court to amend its sentencing order so that the defendant was required to serve his three-day suspension at the commencement of the season for pink salmon.
FULL TEXT
2 NICS App. 190, Tulalip Tribes v. Cultee (October 1992) p. 191
DECISION ON APPEAL
HOSTNIK, Associate Justice:
Defendant Harry Cultee appealed to this court his conviction for three fishing offenses. The defendant's appeal is based upon his contention that his right to a speedy trial was violated. The trial court denied defendant's motion to dismiss prior to trial. The defendant contends his trial occurred more than ninety days from the date of arraignment, in violation of Tulalip Law and Order Code, Section 2.21.1, which provides:
The time and place of court sessions, and all other details of judicial procedure, shall be set out in rules of court approved by the Tribal Board of Directors; provided, however, no trial shall be sooner than sixty (60) days, nor later than ninety (90) days after the arraignment or filing and service of complaint without the written consent of the accused.
The originally scheduled trial date was within this thirty-day window. However, all court proceedings were suspended for twenty days by the Tulalip Tribes, which necessitated continuing the trial. Trial occurred more than ninety days from the date of arraignment.
I. PROCEDURAL BACKGROUND
On September 16, 1991, the defendant was cited by a Tulalip Fisheries Officer for four tribal fishing violations. Criminal complaints were filed in the Tribal Court on January 14, 1992. Arraignment occurred on January 31, 1992. Trial was scheduled for April 10, 1992 – the seventieth day after arraignment.
On April 2, 1992, the Tulalip Board of Directors adopted Resolution No. 92-0060, which suspended all Tulalip Court proceedings. Court proceedings were reinstated on April 22, 1992, upon adoption by the Tulalip Board of Directors of Resolution No. 92-0084, which rescinded the former resolution.
The original trial date fell during the period of time that the operation of the Tulalip Tribal Court was suspended. The respondent concedes the next court date at which the parties appeared was June 26, 1992. At that time, the defendant requested the court to dismiss the charges against him because trial was occurring more than ninety days from the date of arraignment, in violation of Tulalip Law and Order Code, Section 2.21.1. The respondent concedes this was a timely objection by the defendant.1
2 NICS App. 190, Tulalip Tribes v. Cultee (October 1992) p. 192
Upon questioning by the court at the June 26 hearing, the defendant contended he was prejudiced by the delay because two of his witnesses were no longer available. The trial court therefore continued the hearing date to July 10, 1992, to allow the defendant an opportunity to have those witnesses present at trial. The trial court indicated that if the witnesses were unavailable on July 10, 1992, that it was possible that the charges against Mr. Cultee might be dismissed without prejudice. However, those witnesses only related to one of the three charges for which Mr. Cultee was ultimately convicted. The trial court was therefore forced to issue a ruling on whether a violation of speedy trial rights occurred, necessitating the dismissal of all charges.
The trial court ruled: (1) that suspension of court by the Tulalip Board of Directors tolled the defendant's right to a speedy trial, (2) that the defendant waited until the ninety-day period elapsed to claim a violation of speedy trial rights, (3) that the defendant's oral request for a continuance from the May court date to the June court date estopped him from claiming a violation of speedy trial rights, and (4) that the defendant failed to show any prejudice to him due to the delay in trial proceedings.
The trial court issued an order that the defendant's speedy trial rights were not violated unless the defendant's witnesses were not available for trial on July 10, 1992, after issuance of subpoenas. In the event those witnesses were not available, the trial court indicated it would dismiss all four charges without prejudice, and allow the Tribe to refile the complaints.
On July 10, 1992, the parties again appeared for trial. Prior to trial, the defendant renewed his motion to dismiss based upon the fact that two of his witnesses were still unavailable for trial on that date. The prosecutor inquired into whether the witnesses would be able to offer relevant testimony with regard to the offenses for which defendant was charged. After that inquiry, the trial court found that those witnesses were unnecessary for the defense because they were not present when the violations occurred. Trial proceeded and the defendant was found guilty of three of the four charges.
II. SPEEDY TRIAL ANALYSIS
Members of the Tulalip Tribes accused of offenses have the right to a "prompt...hearing..." Constitution and Bylaws for the Tulalip Tribes of Washington, Article VII, Section 4. This language has been construed by the Tulalip Board of Directors to require a trial between sixty to ninety days from the date of arraignment. Tulalip Law and Order Code § 2.21.1.
It is undisputed in this case that trial occurred more than ninety days from the date of arraignment. The issue presented by this case is whether Tulalip Law and Order Code, Section 2.21.1, mandates dismissal of all criminal actions where trial does not occur within the thirty-day window provided in that section. This is a case of first impression in this court.
2 NICS App. 190, Tulalip Tribes v. Cultee (October 1992) p. 193
Other tribal courts have taken differing views with respect to this issue. In Miller v. Crow Creek Sioux Tribe, 12 Indian L. Rep. 6008 (1984), the Intertribal Court of Appeals ruled that personnel problems in the court causing a several month suspension in the operations of the Crow Creek Tribal Court did not constitute good cause for a delay of approximately 14 months between arrest and judgment.1
In United States v. Meyers, 12 Indian L. Rep. 6003 (1984), the Hoopa Valley Court of Indian Offenses, Appellate Division, held that speedy trial rights were violated when the Hoopa Valley prosecutor's office failed to file a complaint within five days of the issuance of a citation, as required in the Hoopa Valley Fishing Code. The delay was caused mainly by the failure of the Bureau of Indian Affairs to process paperwork necessary to the case. However, the court held that willful noncompliance by the Bureau did not constitute good cause to excuse the application of the court rule.
Other courts have followed a more flexible approach. The Lummi Tribal Court of Appeals in Lummi Indian Nation v. Kinley, 19 Indian L. Rep. 6027 (1991), construed a provision of the Lummi Code which required appeal hearings to be conducted within forty-five days from the date a notice of appeal is filed. In that case the appeal hearing occurred beyond that time frame, due in part to substantial turnover within tribal court administration. The Lummi Court of Appeals looked at the record as a whole and engaged in a balancing test. The factors taken into consideration were (1) length of the delay, (2) prejudice to the defendant, and (3) whether the defendant was at fault in causing the delay. This test had been employed in a previous decision of the Lummi Court of Appeals, which involved a lapse of approximately 18 months between arraignment and trial. See Lummi Indian Tribe v. Edwards, 16 Indian L. Rep. 6005 (1988). The Navajo Nation Supreme Court employs a similar test. See Navajo Nation v. McDonald, Jr., 19 Indian L. Rep. 6079 (1992).
We note that this is also the approach followed by the United States Supreme Court in construing rights afforded federal defendants to a speedy trial under the Sixth Amendment to the United States Constitution. In Barker v. Wingo, 407 U.S. 514, 33 L. Ed.2d. 101, 92 S. Ct. 2182 (1972), the United States Supreme Court employed the same test utilized by the Navajo Nation Supreme Court in finding that the defendant was not prejudiced when his trial occurred four years after the date of arraignment. That test uses four factors: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) the prejudice resulting to the defendant from a delay in trial proceedings. MacDonald, Jr., 19 Indian L. Rep. at 6083; Barker, 407 U.S. at 533.
Applying the above balancing approach to this case leads to the conclusion that defendant's speedy trial rights were not violated. First, the
2 NICS App. 190, Tulalip Tribes v. Cultee (October 1992) p. 194
length of the delay was minimal. The ninety-day period expired on April 30, 1992. Trial was scheduled for May 22-only twenty-two days later.1
Second, the reason for the delay was outside the control of either the defendant or the prosecutor. Suspension of all tribal court proceedings for a twenty-day period was an unforeseen circumstance, which could not reasonably have been anticipated by the parties.
Third, the defendant did assert his right to a speedy trial. That factor weighs in favor of the defendant, but our inquiry cannot stop without an examination of the prejudice caused to the defendant by the delay in trial court proceedings.
Perhaps the most significant balancing factor is the prejudice to the defendant which results from a delayed trial. At the time of trial, the defendant asserted that the prejudice which resulted to him was the unavailability of two witnesses. However, it was determined that those two witnesses could offer no relevant testimony. There was no other basis for prejudice urged by the defendant.
Based upon the foregoing, we hold that the defendant's right to a speedy trial, as guaranteed to him by Article VII, Section 4 of the Tulalip Constitution, and by the Indian Civil Rights Act, was not violated.
III. GUIDANCE UPON REMAND
The sentence imposed by the trial judge included a loss of fishing privileges for "the next three fishing days" as part of the sentence for the defendant's violation for fishing in closed waters. This was the violation alleged in Case No. TUL-CRF-12/91-141. In addition, the defendant was ordered to pay fines which were payable in partial payments due by various dates specified in the judgment and sentencing orders.
This case is remanded to the trial court for adjustment of the payment schedules set forth in cases TUL-CRF-12/92-141 and TUL-CRF-12/91-142.
During oral argument, the defendant's spokesperson indicated to the court that he intended to have the defendant serve his three fishing day suspension by requesting the Tulalip Tribes to open a three-day season for fish of little or no economic value. Although the court appreciated the candor shown by the defendant's spokesperson, we were quite disturbed by this deliberate attempt to circumvent the court's penalty for fishing in closed waters.
2 NICS App. 190, Tulalip Tribes v. Cultee (October 1992) p. 195
Therefore, the trial court is instructed upon remand to amend its Judgment and Sentencing Order to have the defendant's loss of the next three fishing days be served out of that season for the species of pink salmon for which he was convicted of illegally taking fish. It appears from Plaintiffs Exhibit 4, admitted at trial, that the defendant illegally obtained 37 pink salmon. Therefore, this portion of his sentence shall be served by losing the next three fishing days during which fishing for pink salmon is otherwise available to members of the Tulalip Tribes.
Therefore, based upon the foregoing, the defendant's convictions for fishing in closed waters (TUL-CRF-12/91-141), obstructing an officer (TUL-CRF-12/91-142), and failure to produce a fishing permit upon demand (TUL-CRF-12/91-146), shall be affirmed. Furthermore, this matter is remanded to the trial court for further proceedings consistent with this opinion.
ROE, Chief Justice, and EDWARDS, Associate Justice, concur.
The first court date after resumption of court proceedings was April 24, 1992. It is unclear whether the parties were prepared to proceed to trial on that date. Trial did not occur then. On May 8, 1992, a trial date of May 22 was set. The defendant requested a continuance on May 11 because he would be unavailable on May 22, 1992. Trial was then reset to June 26, 1992. Apparently, June 26, 1992, was the first opportunity the defendant had to assert his right to a speedy trial in open court.
In Miller, neither defendant proceeded to trial. Both parties raised a motion to dismiss based on speedy trial violations, with no action by the court. Four months later they entered into a plea bargain.
The defendant requested a continuance of this trial date on May 11. Trial was rescheduled to June 26. On that date, the defendant's Motion to Dismiss resulted in a further continuance-at the defendant's request-to July 10, 1992. The delays in trial due to requests by the defendant are not significant to our analysis.