2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993)

IN THE NISQUALLY TRIBAL COURT OF APPEALS

NISQUALLY INDIAN RESERVATION

OLYMPIA, WASHINGTON

Michael Stepetin, III v. Nisqually Indian Community

No. NIS-Cr-l/91-060 (April 16, 1993)

SUMMARY

Nisqually Indian Community member Michael Stepetin, III, was charged with the offense of reckless driving for speeding on Nisqually Reservation roads, endangering the lives of tribal members in the vicinity and striking and killing a dog. The reckless driving charge was based upon Washington State motor vehicle statutes, pursuant to a provision of the Nisqually Law and Order Code allowing the Tribal Court to enforce state statutes where they did not conflict with the Tribal Code. Mr. Stepetin's jury trial on this charge occurred ninety-one days after his arraignment. The jury found him guilty of the lesser included offense of negligent driving. He appealed this conviction.

The Court of Appeals, Chief Justice Rosemary Irvin concurring in part and dissenting in part, addressed two issues: (1) whether Mr. Stepetin's right to a speedy trial was violated, and (2) whether the Nisqually Law and Order provision incorporating Washington State statutes was impermissibly vague. Applying a balancing test used by several tribal courts as well as by the U.S. Supreme Court, the appellate panel ruled there was no speedy trial violation. The majority found that the length of the delay was not unreasonably long, there was a legitimate reason for the delay, the defendant had not asserted his right to a speedy trial until six days before the scheduled trial date, and he had suffered no prejudice as a result of the delay.

In respect to the second issue, however, the majority found that the Nisqually Code provision incorporating state law was impermissibly vague because it failed to provide notice to tribal members regarding which state statutes were to be enforced on the Reservation. In her dissent, Chief Justice Irvin argued that Mr. Stepetin's knowledge of tribal mores and traditions gave him adequate notice that his conduct could trigger sanctions by the Community. As further evidence of notice, she pointed out that the Community had been enforcing state motor vehicle laws on the reservation for several years.

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 225

FULL TEXT

Before:	Chief Justice Rosemary Irvin, Associate Justice Elizabeth Fry, and Associate Justice Charles R. Hostnik.
Appearances:	Tribal prosecutor Debra O'Gara represented the Nisqually Indian Community; NICS public defender J. Martin Sjolie represented defendant Michael Stepetin.

DECISION ON APPEAL

HOSTNIK, Associate Justice:

Michael Stepetin, III, an enrolled member of the Nisqually Indian Community, was charged with the offense of reckless driving, alleging that on September 3, 1990, at or about 8:00 p.m., he drove a truck at a high rate of speed on a gravel road on the Nisqually Reservation. The complaint further alleged that tribal community members were in the vicinity, though no one was struck or injured. Unfortunately, a dog was struck and killed. Mr. Stepetin exercised his right to a jury trial. The trial was conducted on May 14, 1991. The jury did not find Mr. Stepetin guilty of reckless driving, but did find him guilty of the lesser included offense of negligent driving. From this conviction, Mr. Stepetin appeals to this Court.

Mr. Stepetin's reckless driving charge was based upon Washington State statutes. Resort to the Washington State statute was made pursuant to a provision of the Nisqually Indian Community's Law and Order Code, which states as follows:

Where state law ... does not conflict with the Tribal Code, the Tribal Court may resort to and enforce any state statute within tribal jurisdiction.

Nisqually Law and Order Code, Ch. I, § 1(c); recodified 1991 as Nisqually Tribal Code, § 1.02.03(c).

ISSUES PRESENTED

Mr. Stepetin raises three issues in his appeal:

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 226

SPEEDY TRIAL RIGHTS

Mr. Stepetin was arraigned in February of 1991. Trial was set for April 23, 1991. This was to be a non-jury trial. On March 13, 1991, Mr. Stepetin, through his defense counsel, requested a jury trial. On March 19, 1991, a pretrial conference was conducted between the judge, prosecuting attorney, and defense counsel. A trial date of May 14, 1991, was set for Mr. Stepetin's jury trial. The change in trial date was necessitated by the fact that other matters were scheduled for the docket on April 23, and it was not anticipated that those matters could be heard, as well as the completion of Mr. Stepetin's jury trial, all in one day. The jury trial was set for the next available court date which was May 14, 1991.

The Nisqually Law and Order Code provides that a criminal defendant has the right "to have a speedy and public trial." Nisqually Law and Order Code, Ch. I, § 22; recodified 1991 as Nisqually Tribal Code, § 4.11.01. The Code is silent as to how many days shall be permitted between arraignment and trial. The Indian Civil Rights Act also guarantees a speedy trial to criminal defendants. 25 U.S.C. § 1302(6).

In the absence of a legislatively mandated time period within which criminal trials must be conducted, it is difficult, if not impossible, to determine when the right to a speedy trial has been violated:

[T]he right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the state can put the defendant to the choice of either exercising or waiving the right to a speedy trial.

Barker v. Wingo, 407 U.S. 514, 521, 92 S. Ct. 2182, 33 L. Ed.2d 101, 112 (1972).

In Barker, the United States Supreme Court adopted a flexible approach in construing the Sixth Amendment right to a speedy trial. This approach balanced the competing interests of prosecution and defense in a four-part test. Those four factors were: (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant. 407 U.S. at 530. This is substantially similar to the test adopted by the Lummi Nation, and by the Navajo Nation. See Lummi Indian Nation v. Kinley, 19 Indian L. Rep. 6027 (1991); Navajo Nation v. MacDonald, Jr., 19 Indian L. Rep. 6079 (1992).

Applying these factors requires us to find no speedy trial violation. First, defendant's trial occurred on the ninety-first day after the date of arraignment.

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 227

This is not an unreasonable delay, if it is to be construed as a delay at all. Second, a legitimate reason caused the delay--the court reset the trial date after a jury trial was demanded in order to allow a full day for trial, rather than keeping it on a crowded docket. Third, defendant failed to assert his right to a speedy trial until six days before the scheduled trial date. Fourth, no prejudice occurred to the defendant. This is necessary for a successful speedy trial objection. Kinley, 19 Indian L. Rep. at 6028; MacDonald, Jr., 19 Indian L. Rep. at 6083.

Although it is not binding on this court, it is appropriate to look at the law of the surrounding jurisdiction for guidance as well. Under Washington State Court Rules, no more than ninety days shall elapse between the date of arraignment and the date of trial. Washington Court Rules, Criminal Rule 3.3(c). Washington Court Rules provide that failure of a defendant to object to the date set for trial within ten days of being notified of that trial date constitutes a waiver of speedy trial rights. See Washington Court Rules, Criminal Rule 3.3(f).

In reviewing a similar claim of a speedy trial rule violation, the Washington Court of Appeals held that a defendant must notify the prosecutor and the court of its speedy trial objection in sufficient time for the trial to commence within the proper speedy trial period. State v. Austin, 59 Wash. App. 186, 200, 796 P.2d 746 (1990). In that court's view, failure to bring a timely speedy trial objection constitutes a waiver of defendant's speedy trial rights.

In this case, trial was originally scheduled for April 23, 1991. On March 13, defendant requested a jury trial, and on March 19, 1991, he was notified of the jury trial date. However, defendant did not raise an objection to that new trial date until May 8, 1991. This left six days until the scheduled trial date. Of those six days, two were weekend days, leaving three working days prior to the date of trial. Based upon these facts, it is clear defendant was aware of the new trial date seven weeks prior to the date of trial. At any point during that seven weeks the defendant could have raised his speedy trial objection. However, he waited until less than one week prior to the date of trial before raising that objection.

As pointed out by the defendant, the speedy trial period in Washington State is ninety days (see Washington Court Rules, Criminal Rule 3.3(c)(1)), and the period in federal court is seventy days (see 18 U.S.C. § 3161(C)(1)). We decline to dictate to the Nisqually Tribe a definitive speedy trial period. As stated by the United States Supreme Court:

[S]uch a result would require this court to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should continue our efforts.... We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States,

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 228

of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.

Barker v. Wingo, 407 U.S. at 523.

However, no matter what standard is adopted by the Nisqually Indian Community, under the circumstances of this case this court holds that the defendant's speedy trial rights were not violated.

VAGUENESS OF NISQUALLY INCORPORATION PROVISION

The Nisqually Indian Community has enacted a provision which states as follows:

Where state law...does not conflict with the Tribal Code, the Tribal Court may resort to and enforce any state statute within tribal jurisdiction.

Nisqually Law and Order Code, Ch. I, § l(c); recodified 1991 as Nisqually Tribal Code, § 1.02.03(C).

The defendant contends this language is impermissibly vague because it does not provide notice to the members of the Nisqually Indian Community regarding what state statutes are to be enforced. The defendant further contends this language is an impermissible delegation of legislative power to the Tribal Court.

In response, the respondent contends this language must be viewed in conjunction with the history of prosecutions undertaken by the Nisqually Indian Community since this provision was enacted in 1979. In support of the Community's position, the respondent completed an unofficial survey of criminal cases filed between 1983 and 1990. The results of the unofficial survey showed that of 51 total offenses charged during that period of time, 27 of those cases were criminal charges based upon provisions of Title 46 of the Revised Code of Washington. Of those 27 cases, 9 were reckless driving cases. Six reckless driving cases occurred during the year 1983, and the remaining three reckless driving cases occurred in 1985, 1986, and 1988.

We begin our analysis by noting that, in general, a strong presumption exists in favor of a statute's validity, and this court is obligated to find the statute constitutional, if at all possible. U.S. v. Harriss, 347 U.S. 612, 618, 74 S. Ct. 808, 98 L. Ed. 989 (1953); State v. Smith, 111 Wn.2d 1, 5, 759 P.2d 372 (1988).

The principle underlying the vagueness doctrine is that no one is to be held criminally responsible for conduct which he or she could not reasonably understand to be proscribed. Harriss, 347 U.S. at 618; Smith, 111 Wn.2d at 5. In making that determination, we are to determine whether the statute gives a person of ordinary intelligence fair notice that certain conduct is forbidden. Harriss, 347 U.S. at 617; Connally v. General Construction Co., 269 U.S. 385, 391,46 S. Ct. 126, 70 L. Ed. 322 (1926). This is a component of due process. The

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 229

Indian Civil Rights Act provides that no tribe, in exercising powers of self-government, shall deprive any person of liberty or property without due process of law. 25 U.S.C. § 1302(8).

The statute in this case, on its face, does not prohibit any conduct. It does not require the Tribal Court to resort to and enforce any state statutes, but clearly leaves discretion to the court to do so.

Therefore, the ultimate issue addressed by the vagueness argument is whether this provision of Nisqually law was adequate to give fair notice to Mr. Stepetin that his conduct was prohibited by the Nisqually Tribal Code. Mr. Stepetin was alleged to have driven a truck at a high rate of speed along a gravel road on the Nisqually Reservation. Tribal members were in the vicinity and though no one was injured, a dog was struck and killed.

Any reasonable person should know that this type of conduct is prohibited in any community. However, we agree with defendant's counsel when he stated the issue as not whether Mr. Stepetin knew this conduct was wrong, but whether he knew it was a crime. The Nisqually incorporation statute does not advise Mr. Stepetin, or any other Nisqually Tribal member, that driving a motor vehicle in this manner was a crime. Therefore, we find that the statute is impermissibly vague.

We are aware that on the Nisqually Reservation word may travel quickly throughout the Reservation. However, we do not believe that this is, or should be, a substitute for proper enactment, enforcement, and notice of ordinances by the Community. We agree with the federal District Court in the case of Big Eagle v. Andera, 418 F. Supp. 126 (D.S.D. 1976), when it said:

Fair play requires that people should not be penalized under criminal statutes which do not give notice in plain language to a person of ordinary intelligence that a course of conduct is forbidden or required.

Id. at 131.

In Big Eagle, the Crow Creek Sioux Tribe was defending against a vagueness challenge to the Tribe's disorderly conduct ordinance. As part of its defense the Tribe offered a statistical history of prosecutions under the ordinance over a period of years. Although the District Court considered the history, the court held that the ordinance was vague and overbroad, both as written and as enforced. Therefore, that court rejected the Tribe's argument that tribal members had been put on notice of the alleged broad application of the ordinance through a history of prosecutions. Although on appeal the case was remanded for evidence of enforcement history, the Ninth Circuit expressed no opinion on whether enforcement history could cure an otherwise vague statute. Big Eagle v. Andera, 508 F.2d 1293 (9th Cir. 1975).

Where prosecutors or law enforcement officials may impose their personal predilections in determining what should be permissible behavior

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 230

under a statute, such a provision is unconstitutional. United States v. Simms, 508 F. Supp. 1179, 1182 (1979).

In light of our decision on this issue, we find it unnecessary to reach the remaining issue: whether negligent driving was properly included within the prosecutor's complaint against defendant for reckless driving.

Chief Justice IRVIN, concurring in part and dissenting in part:

I am most surprised at the majority opinion and in strong disagreement with its conclusion that Mr. Stepetin had inadequate notice that his conduct could be criminally sanctioned under the laws of the Nisqually Indian Community.¹ As a tribal trial and appellate judge for fourteen years, having served over twenty different tribes, having presided as the trial judge at the Nisqually Reservation for one-and-one-half years, and having been a part of the lives of these tribal people, I have to conclude that Nisqually custom and tradition combined with the tribal history of enforcement of the state statute at issue provided adequate warning to the appellant that his conduct could be sanctioned in the manner it was.

The doctrine of vagueness of a statute originated in the non-Indian community. Federal cases, state cases, and even those from other Indian reservations have little, if any, applicability to the facts of the present case. One must interpret the disputed statute in the context of the Nisqually Indian Community, a physically small and close-knit community of tribal people whose lineage and customs have intertwined for hundreds of years. C. Carpenter, Fort Nisqually: A Documented History of Indian and British Interaction 1-19 (1986); H. Haeberlin & E. Gunther, The Indians of Puget Sound 7-8 (1930); R. Ruby & J. Brown, A Guide to the Indian Tribes of the Pacific Northwest 150-52 (1992).

I. THE CENTRAL ROLE OF TRADITIONAL MORES IN THE TRIBAL COMMUNITY

Tribal jurisprudence does not spring from European roots, but stems from tribal traditions, practices, and teachings that predate the introduction of Anglo-American law in this country. These traditions and customs constitute the original body of tribal law, the role of which is in many ways analogous to that of common law crimes in the Anglo-American tradition.²

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 231

The Tribe's original laws and conflict-resolution mechanisms have altered over time in response to policies imposed by the United States and sometimes carried out by the state and local governments. See C. Carpenter, supra, at 191-98; R. Ruby & J. Brown, supra, at 150-52. The shift imposed on the Tribe from being the dominant culture possessing unrestricted territorial rights to being a minority culture whose territories have been severely reduced to reservations and federal trust lands has also caused them to change. ld. These changes, however, have not altered the fact that the roots of tribal justice are deeply grounded in tribal custom and tradition, not in the non-Indian culture.

A. The Nisqually Indian Community has not adopted the provisions of the U.S. Constitution

In his brief Mr. Stepetin argued that the Nisqually Tribe, by language in the Nisqually Tribal Constitution, has guaranteed to its members the protections of the U.S. Constitution. The language cited for this proposition is as follows:

Section 1. Enumerated Powers. The Community Council of the Nisqually Indian Community shall exercise the following powers, subject to any limitations imposed by the statutes or the Constitution of the United States.

Nisqually Const. art. V, § 1.

It is clear from the above provision that the Nisqually Indian Community has not adopted the provisions of the United States Constitution and statutes of the United States as its own. In this section of its Constitution, the Tribe has merely expressed its intent that whatever limitations are imposed on the tribal community by federal law are to be followed. Therefore, the Nisqually Tribe is not subject to the constitutional limitations that apply to the states or the federal government, and the appellant's due process rights are not defined by these laws. As discussed below, Mr. Stepetin's due process rights derive from Nisqually tribal customs and traditions and from Title I of the Indian Civil Rights Act (ICRA), codified at 25 U.S.C.A. Sections-1301-1303. The Indian Civil Rights Act has been "imposed by the Statutes ... of the United States" and is thus applicable to the Nisqually Indian Community.

B. The hybridization of traditional law and Anglo-American jurisprudence

1. Tribal sovereignty and the role of the tribal court

Indian tribes are quasi-sovereigns, not states of the Union. They do not exercise their tribal authority as an arm of the federal government. Each tribe is also a sovereign separate and apart from any other tribe. "Indian tribes are 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S. Ct. 1670, 56 L. Ed.2d 106 (1978) (quoting Worcester v.

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 232

Georgia, 6 Pet. 515, 559 (1832). "Although no longer 'possessed of the full attributes of sovereignty,' they remain a 'separate people, with the power of regulating their internal and social relations.'… They have power to make their own substantive law in internal matters… and to enforce that law in their own forums ..." Id at 55-56.

During the period of the federal policy of assimilation tribal practices were suppressed by both federal and state governments, leading to the loss of many of the traditional practices of Puget Sound tribes. Northwest Intertribal Court System, Traditional and Informal Dispute Resolution Processes in Tribes of the Puget Sound and Olympic Peninsula Regions 58-71 (1991). Tribes have varied in how they have filled the void this created.

The Nisqually Tribal Court has come to take on aspects of U.S. jurisprudence because of the Tribe's quasi-sovereign status. The law of Anglo-American society is preserved and transmitted in writings, rather than in the oral manner customary to tribal people. See F. Cohen, Handbook of Federal Indian Law 230 (1982). Due to the superimposition of Anglo-American written law over tribal oral custom and tradition, the Nisqually Tribe has adopted many of the procedural forms of federal and state tribunals, as well as some substantive provisions. See generally id. at 251. As with other Western Washington tribes, the further sophistication of the Nisqually Tribe's courts was necessitated by the need for the Tribe to be self-regulating under the ruling of U.S. v. Washington, in order to secure its fishing rights. See 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, 473 U.S. 658 (1979). This meant, in part, having tribal court decrees which can be understood and given credence in the federal and state courts. I would hold, however, that none of these evolutionary changes have overturned or supplanted traditional law where it is practiced and has not been clearly and specifically changed by the Tribe.

Tribal statutes which have been adopted in derogation to tribal tradition should be regarded with caution. Just because tribal communities have sometimes given paper recognition to non-Indian practices and Anglo-American law principles in their laws does not necessarily mean that such apparent adoption of non-Indian legal concepts and practices should be taken at face value. Tribal practices and traditions have always been oral, see F. Cohen, supra, at 230, and it is very rare that any tribe intends to supplant these with a formal writing.

Tribal courts as they presently exist are not a traditional forum for tribal people. For the Western Washington tribes, the need to assert treaty hunting and fishing rights, territorial jurisdiction over the reservations, and the tribal interest in their children given legal protection in the Indian Child Welfare Act, has caused tribal courts to become more complex and to take on aspects of non-Indian jurisprudence to gain respect in the non-Indian community. The courts have also taken over some of the functions originally performed by the tribal elders in providing a forum to resolve disputes in the community and in sanctioning members for conduct the community will not tolerate. In performing any of these functions the court must be fundamentally fair and

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 233

evenly address the needs of the tribal community in order to maintain legitimacy and respect.

The relational aspect of tribal courts, in which the tribal court serves as a dispute resolution forum for a tribal community which consists of related families, is an important way in which the function of tribal courts differs from that of non-Indian jurisprudence. Rigid rules, fashioned as precedent for adjudications but ignoring the internal dynamics of the tribal community, may not serve justice at all. In contrast, equitable considerations and procedures allowing flexibility in dispute resolutions may often be more responsive to the relational needs of the tribal community.

2. The Due Process Clause of the Indian Civil Rights Act

The requirements of the Indian Civil Rights Act (ICRA), 25 U.S.C.A. 1301-1303, imposed on the Tribe by the United States government, must be viewed within the context of the cultural expectations and the dynamics of the tribal community. Section 1302 (8) of ICRA states that "No Indian 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." However, the cross-over of a non-Indian legal right into Indian country is not a simple one:

Congress did not intend that the equal protection and due process principles of the Constitution disrupt settled tribal customs and traditions. The problem might be more usefully stated as one of interpreting the ICRA limitations in the context of tribal traditions and governmental structures. This is not an easy process, because these concepts are not readily separated from their attendant cultural baggage; due process especially implies a number of particular procedural rights derived from Anglo-American history. With federal court review confined to habeas corpus cases, the accommodation of the ICRA standards to tribal traditions and structures will be made more gradually, and tribal institutions will have the most significant role in the process.

F. Cohen, supra, at 670 (citations omitted).

In the interpretation and determination of due process rights under ICRA, each tribe must be treated with regard to its own individual composition and territory. In many cases, large tribes with large reservations have adopted the Federal Rules of Procedure and/ or have incorporated state substantive laws into their codes. Caselaw from these tribal courts does not necessarily fit smaller reservations with strongly integrated communities, tribes with a different economic base and practices, or tribes with more relaxed procedures or simplified law and order codes.

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 234

The majority, paraphrasing the defendant's attorney, states the issue of adequate notice as "not whether Mr. Stepetin knew this conduct was wrong, but whether he knew it was a crime." Majority Opinion at 8. But traditionally, for a member of what is now the Nisqually Indian Community, there was no difference between wrongful conduct and that which was societally sanctioned. Interview with Barbara Lane, Ph.D., anthropologist specializing in Northwest Native American customs and traditions (Jan. 7, 1993). To say that the defendant knew that he had violated a community standard but that he did not know there was a written statute making this violation illegal is to make a distinction without a difference.

Mr. Stepetin drove recklessly on the Nisqually Reservation in a manner that not only endangered property but also human life, and ended up killing one family's pet dog. See Tribe's Criminal Complaint of Jan. 22, 1991, at 2. Traditionally, when conduct such as this occurred within the tribal community, it was customary for someone who represented the victim to go to the family of the person who had caused the loss and demand satisfaction or payment. If the person refused to make some offering of regret or payment, the event would upset relationships between families and risk starting a feud.¹ If no offering was made, the leader of the community or some respected elder or a person of standing in the community would frequently step in and try to settle the dispute.

The Nisqually Indian Community is a close-knit society located on a small, rural reservation, where many families are closely or distantly related to one another. Mr. Stepetin has lived in this community all of his life. He knew that the type of behavior he engaged in could result in tribally-imposed sanctions. The Nisqually Trial Court imposed a fine and restitution. Both of these penalties are closely in line with traditional penalties, which could also have included making an offer of regret to the injured family, shaming, or, in the extreme case, banishment. See F. Cohen, supra, at 335; NICS, supra, at 38-41. Although the trial court was enforcing a state statute, its actions were closely in line with tribal tradition.

In conclusion, Mr. Stepetin's knowledge of those common social duties imposed by traditional tribal mores constituted adequate notice that his conduct could trigger tribal sanctions. There would appear to be little difference between this conclusion and Justice Holmes' well-known view of adequate notice under the due process clause:

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 235

[T]he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong not only may he incur a fine or short imprisonment...he may incur the penalty of death... "The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct."

Nash v. United States, 229 U.S. 373, 377, 33 S. Ct. 780, 781, 57 L. Ed. 1232, 1235 (1913) [emphasis added].

II. ACTUAL NOTICE FROM ENFORCEMENT HISTORY AND COMMON KNOWLEDGE WITHIN THE COMMUNITY

Beyond his knowledge of traditional mores, Mr. Stepetin also had actual notice that the reckless driving statute and other state motor vehicle offenses were being enforced on the Nisqually Reservation, and that his conduct could or would be criminally punished.

Mr. Stepetin does not argue that the language of the Washington State statute under which he was convicted for reckless driving is vague. His challenge concerns the Nisqually Law and Order Code provision incorporating the state statute. That provision states:

Where state law does not conflict with the Tribal Code, the Tribal Court may resort to and enforce any state statute within Tribal jurisdiction.

Nisqually Law and Order Code, Ch. I, Sec. 1(c); recodified 1991 as Nisqually Tribal Code, Section 1.02.03(c).

The Tribe submitted an unofficial survey to this court which indicated that 27 driving offenses, including the offense of reckless driving. had been criminally charged by the Community under Title 46 of the Revised Code of Washington from 1983 to 1990.

It is well-recognized on the smaller Western Washington reservations that word travels very fast: members of these communities are very much aware of daily events in the lives of other members. On these smaller reservations, it is not uncommon for a defendant whom the court has been unable to contact and who fails to show for his or her morning court date, to show up in the afternoon, after a bench warrant has been issued, saying he or she heard or "remembered" he or she had a court date but couldn't "remember" what time it was. The operation of the "moccasin telegraph" is very much alive on these reservations. To discount its existence and effectiveness in providing notice to tribal members that driving offenses from the Motor Vehicle laws of Washington State have been incorporated into tribal law and are subject to prosecution on the Reservation, when there have been numerous prosecutions instigated for these offenses, would be to deny reality.

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 236

III. EVEN UNDER ANGLO-AMERICAN DUE PROCESS PRINCIPLES, THE DEFENDANT HAD ADEQUATE NOTICE THAT HIS CONDUCT VIOLATED NISQUALLY LAW

The void-for-vagueness doctrine has its roots in the due process clauses of the Fifth Amendment (when a federal statute is involved) and the Fourteenth Amendment (when a state statute is involved). See U.S. Const. amend. V & XIV. Under the doctrine:

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning...violates the first essential of due process.

Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed.2d 322, 328 (1926).

As discussed above, the interpretations of the Fifth and Fourteenth Amendments by the federal courts are not directly applicable to the Nisqually Tribe. However, for the sake of argument alone, I believe Mr. Stepetin's conviction would be upheld even if the reasoning of the federal courts were applied to the present case.

The three questions commonly considered by the United States Supreme Court in evaluating a void-for-vagueness challenge are: (1) Does the statue at issue give fair notice to those persons potentially subject to it? (2) Does it adequately guard against arbitrary and discriminatory enforcement? and (3) Does it provide sufficient breathing space for First Amendment rights? W. La Fave & A. Scott, supra, at 92.

A. Fair Notice

In determining what is fair notice, the Supreme Court has stated that a criminal statute must be clear to the "average man," Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S. Ct. 681, 687, 71 L. Ed 1146, 1156 (1927). The Court, however, has also said that words of a statute which otherwise might be considered unduly vague may be considered sufficiently definite because they have a well-settled meaning in the common law, Connally, 269 U.S. at 391, or because of their usage in other legislation. Omaechevarria v. Idaho, 246 U.S. 343, 348, 38 S. Ct. 323, 325, 62 L. Ed 763, 768 (1918). The combination of these pronouncements has led one commentator to suggest that

In general, it would seem fair to charge the individual with such knowledge of a statute's meaning and applicability as he could obtain through competent legal advice, provided that the statute gives him enough warning that he ought reasonably to see the need of obtaining such advice.

Note, 62 Harv. L. Rev. 77, 80 (1948) (quoted in W. La Fave & F. Scott, supra, at 92 n.27).

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 237

The language of Section 1.02.03(c) of the Nisqually Tribal Code gives members of the Nisqually Reservation clear notice that the Tribe may, in its discretion, enforce Washington State laws on the Reservation. The question is whether an "average man" (or woman) in the Nisqually community has adequate notice under this provision that the state's motor vehicle laws are in force on the Reservation. My view is that such notice has been provided by the fact that the defendant's conduct would not have been tolerated by traditional law, that the state statute proscribes this kind of conduct, and that the Tribe has sentenced offenders for traffic offenses in the past.

Thus, where Mr. Stepetin had notice of the Tribe's discretionary power to enforce Washington State law, where he engaged in conduct which, had it occurred outside the boundaries of the Reservation, would clearly have been subject to criminal prosecution under state motor vehicle laws, and where numerous tribal prosecutions for the same and related types of conduct had previously occurred on the Reservation, it is reasonable to conclude either that Mr. Stepetin himself knew or that a competent attorney could have informed him that he could be prosecuted for driving recklessly on the Reservation.

In addition, the conduct for which Mr. Stepetin was punished was intrinsically blameworthy. As the Majority has acknowledged: "Any reasonable person should know that this type of conduct is prohibited in any community." In respect to this type of crime, in which a defendant has violated a criminal statute by doing something "that one would hardly be surprised to learn...is not an innocent act." United States v. Freed, 401 U.S. 601, 608, 91 S. Ct. 1112, 1118, 28 L. Ed.2d 356 (1971), the United States Supreme Court has indicated that the very nature of the action itself may be sufficient to give a defendant adequate notice that he or she is at risk of breaking the law. See id. (possession of unregistered hand grenades). As the Court has commented in a different context:

Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.

Maynard v. Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857, 100 L. Ed.2d 372 (1988). See also Nash v. United States, 229 U.S. at 377.

Thus, the intrinsically blameworthy nature of the defendant's conduct, the language of the relevant statutes, their enforcement history, and the fact that the conduct at issue is punished off the Reservation all provided fair notice to the defendant that he was at risk of breaking Nisqually tribal law. If the Tribe had chosen to enforce a criminal statute which prohibited conduct which would have been tolerated under tribal common law or which required Mr. Stepetin to do something which he would not have done traditionally, a "fair warning" objection would have more credence. It is obvious, however, that the Mr. Stepetin's conduct is illegal everywhere. The

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 238

ambiguity which he argues in this case appears to be merely a pretext for evading the law.

B. Danger of Discriminatory Enforcement

The danger of arbitrary and discriminatory enforcement under a vague statue is associated with statues which either give police unlimited discretion in enforcement activities, see, e.g., Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed.2d 176 (1965) Laws criminalizing the refusal to obey a police officer), or which furnish convenient tools for discriminatory enforcement by prosecuting officials, see, e.g., Thornhill v. Alabama, 310 U.S. 80, 60 S. Ct. 736, 84 L. Ed 1093 (1940) (anti-loitering laws).

Mr. Stepetin argues that the Nisqually incorporation provision allows the tribal prosecutor or tribal police officers to make him the target of arbitrary or discriminatory enforcement. Appellant's Brief 7-9. The Nisqually provision, however, does not provide unlimited discretion to law enforcement. The Washington State reckless and negligent driving laws incorporated under Section 1.02.03(c) of the Nisqually Tribal Code provide, in part:

46.61.500 Reckless driving--Penalty. (1) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. Violation of the provisions of this section is a gross misdemeanor punishable by imprisonment of not more than one year and by a fine of not more than five thousand dollars ...

46.61.525. Operating motor vehicle in a negligent manner-Penalty--Exception. It shall be unlawful for any person to operate a motor vehicle in a negligent manner. For the purpose of this section to "operate in a negligent manner" shall be construed to mean the operation of a vehicle in such a manner as to endanger or be likely to endanger any persons or property ...

The offense of operating a vehicle in a negligent manner shall be considered to be a lesser offense than, but included in, the offense of operating a vehicle in a reckless manner, and any person charged with operating a vehicle in a reckless manner may be convicted of the lesser offense of operating a vehicle in a negligent manner ...

The statutory provisions under which Mr. Stepetin was convicted are clear in defining the type of conduct prohibited and in warning that someone who engages in this type of conduct can be criminally punished. This is very different from a statute determined to be so vague as to leave judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case brought under the statute. See La Fave & Scott, supra, at 95 (citing Giaccio v. Pennsylvania, 382 U.S. 399, 86 S. Ct. 518, 15 L. Ed.2d 447 (1966).

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 239

The Nisqually Indian Community, like any tribal government, has prosecutorial discretion to enforce its laws on the Reservation. By supplementing the provisions of the Tribal Code with what state laws are appropriate in given instances, the Tribe's incorporation provision functions as a broad grant of prosecutorial discretion. The majority would require an enacting statute specifically defining which laws are to be in force on the Reservation. However, the Tribe lacks the resources to enact regulatory legislation to cover all possible forms of illegal conduct on the Nisqually Reservation.

It is a formidable task for the Tribe to codify all traditional, oral tribal law and make it understandable to the non-Indian community; such a task would require extensive resources. Indian tribes have had to take on this task because they realize that written codes and laws are necessary to protect their people and their resources. But, due to the difficulty of the task and the scarcity of resources, the tribes are still playing "catch-up" with the non-Indian community.

The alternative the Tribe has in the present case is to pass an ordinance saying that all Washington statutes shall be in force on the Reservation. Then it could simply choose, through the exercise of its prosecutorial discretion, which state laws would actually be given effect. Potential problems, however, would be raised by this approach. Many of the Washington statutes adopted as Nisqually law by such a blanket enactment would directly contradict traditional values and customs. This form of enacting legislation would definitely create due process notice problems and confusion in the community.

C. First Amendment Rights Under ICRA

The only First Amendment rights guaranteed to Nisqually tribal members are those under ICRA.¹ Federal and state court interpretations of First Amendment rights are not directly binding on Indian tribes. Even if such interpretations were binding, no first amendment concerns have been raised in this case. No arguments have been made that statutes prohibiting reckless and negligent driving infringe on First Amendment rights.

* * *

In conclusion, Mr. Stepetin clearly had adequate notice his conduct could be punished in the manner it was. The statutes in question, as written and applied, are not impermissibly vague. To reach a different result is to torture tradition and the social fabric of the Nisqually community. The tribal community places a high value on telling the truth, and on the admission of

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 240

fault by a wrong-doer, so that there can be correction of the wrongful conduct and/or recompense for its consequences. This is necessary in order for the wrong-doer to be taken back into the fold of the tribal community. To allow an offender to go unpunished for obvious wrong-doing is destructive to the social health of the tribal community.

IV. LESSER INCLUDED OFFENSE

The common practice in non-Indian criminal justice systems is that lesser offenses are included in a charge. This is based on the premise that the elements of the charges overlap but are of a lesser standard and, therefore, the defendant has adequate notice of the charges and can be convicted of the lesser charge. On the Nisqually Reservation, a conviction for the lesser included offense of negligent driving must satisfy the same notice requirements as a conviction for the original offense of reckless driving: it must be intrinsically blameworthy conduct which is prohibited by tribal law.

Mr. Stepetin was convicted of negligent driving which is, by RCW 46.61.525 as incorporated by Nisqually law, the lesser included offense of reckless driving. Clearly, operating "a vehicle in such a manner as to endanger or be likely to endanger any persons or property," see RCW 46.61.525, is also intrinsically blameworthy conduct which would not and will not be tolerated within the Nisqually tribal community. This is especially so when, as in Mr. Stepetin's case, damage can and actually did result from such conduct. Mr. Stepetin had sufficient notice to convict him of this lesser included offense.

V. SPEEDY TRIAL RIGHTS

Mr. Stepetin was represented by court-appointed counsel at trial. His attorney failed to raise the issue of a violation of his client's right to a speedy trial until less than one week prior to the scheduled trial date, even though the attorney had been given sufficient notice of the trial date seven weeks before.

It is important in determining what constitutes a speedy trial in the Nisqually Tribal Court, to examine the mechanics of the Nisqually Tribal Court and the defendants who appear before the court. The court has a regularly scheduled docket twice per month. Those servicing the court as its judge, prosecutor and public defender, ride circuit to other Northwest tribal courts and are not always available for special hearing dates in Nisqually Tribal Court. Most defendants are not in custody prior to trial. There is no jail on the Reservation; the Tribe contracts with the Puyallup Tribe and Thurston County for holding facilities. When tribal members are engaged in treaty fishing activities, many express the desire to have cases scheduled around available fishing days. This is because, for many families on the Reservation, fishing is their principal source of income.

2 NICS App. 224, Stepetin v. Nisqually Indian Community (April 1993) p. 241

The principal reasons for assuring a speedy trial for defendants out-of custody are to ensure that the case is tried fairly, i.e., that evidence does not disappear and that witnesses' recollections do not fade, and to prevent an accused from being under the shadow of pending prosecution for an unreasonable period of time.

Until recently, the Nisqually Community did not have a public defender for its members. While it is possible these services will continue to be available, under the Indian Civil Rights Act defendants are not guaranteed the right to cost-free representation when they can't afford to pay for it. The Tribe has also not guaranteed this right to its members, and the federal funding source for the current position is not guaranteed. In the future, as it has been in the past, it is possible that tribal criminal defendants will be responsible for their own representation. When defendants represent themselves, they generally are unsophisticated in the defenses they raise. Therefore, it is imperative that court procedures remain flexible enough to allow both those learned in legal matters and those who are unschooled to present an adequate defense. While I agree with the majority that the speedy trial objection was not timely raised by Mr. Stepetin's counsel, who is an attorney, it should be emphasized that this ruling on the issue is specific to this case. In a future case, the failure to raise a timely speedy trial objection may not constitute a waiver preventing a defendant from raising this defense.

I believe the reasoning of Lummi Indian Tribe v. Edwards, 16 Indian L. Rep. 6005, 6007 (1989), is applicable to the facts of this case:

The Court knows of no rule or law ... which automatically requires the dismissal of charges because of the lapse of eighteen months between arrest and arraignment and trial on the charges. Further, such a lapse cannot justify dismissal of criminal charges without a finding of prejudice to the defendant in proceeding with the trial and a finding that the defendant was not at fault in causing the delay.

* * *

I therefore concur with the majority's conclusion that Mr. Stepetin's speedy trial rights were not violated in this case, and, for the reasons stated herein, dissent with the majority's reversal of Mr. Stepetin's conviction for negligent driving.

---

The terms 'Nisqually Indian Community' and 'Nisqually Indian Tribe' (or simply 'Tribe') will be used interchangeably throughout this dissent.

Like tribal customs and traditions, the common law of crimes might be said to be "unwritten law" in the sense that it is not found in constitutions, statutes, or administrative regulations. See W. La Fave & A. Scott, The Criminal Law 64 n.3 (1986).

The anger engendered in this case by Mr. Stepetin's conduct was so intense that the trial court found it necessary to issue a reciprocal restraining order and preliminary injunction prohibiting contact between the hostile families involved in the case. See Reciprocal Temporary Restraining Order of May 15, 1991, and Reciprocal Preliminary Injuction of May 28, 1991.

Section 1302 (1) of ICRA states: "No Indian tribe in exercising powers of self-government shall...make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances[.]"