3 NICS App. 281, Burns Paiute Tribe v. Dick (February 1994)

IN THE BURNS PAIUTE TRIBAL COURT OF APPEALS

BURNS PAIUTE INDIAN RESERVATION

BURNS, OREGON

Burns Paiute Indian Tribe v. Dick, et al.

Nos. CV-15-93, CV-16-93, CV-17-93 (February 14, 1994)

SUMMARY

Appeal of Trial Court exclusion order on grounds that: (1) Trial Court denied Appellants equal protection because other persons with similar crimes were not excluded; (2) the exclusion ordinance was overly vague; and (3) exclusion violates Appellants' liberty interest in maintaining close relationships with loved ones.

Court of Appeals reversed exclusion order upon finding that Appellants had established an equal protection claim by showing both selective enforcement and improper motive by Tribe in seeking exclusion. Appellate Court also held that exclusion does impinge on liberty interest of maintaining close relationships, and that ordinance was overly vague because it did not inform persons of what conduct might result in exclusion.

FULL TEXT

Before:            Chief Justice John L. Roe, Associate Justice Dennis Nelson, and Associate Justice Calvin E. Gantenbein.

Appearances:  Appellants, Donavon Dick, Ruppert S. Tom and Robert L. Tooke; W.D. Kramer, Jr., attorney for Appellants; and Kenneth A. Bardizian, Burns Paiute Tribal Attorney, representing Respondent.

NATURE OF THE ACTION

Trial Court excluded Appellants from the Burns Paiute Indian Reservation following a joint hearing. At the hearing, Trial Court found Appellants, members of the Tribe, had violated Tribal laws or ordinances. Appellants appealed the exclusion order, alleging denial of equal protection, overly vague ordinance, and denial of liberty interests.

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ROE, Chief Justice:

THIS MATTER came before the Burns Paiute Court of Appeals on December 6, 1993. Present in court were Donavon Dick, Ruppert S. Tom and Robert L. Tooke (hereinafter referred to as Appellants) and their attorney, W.D. Cramer Jr: Kenneth A. Bardizian, the Burns Paiute Tribal Attorney, appeared for the Respondent tribe.

Appellants were excluded from the Burns Paiute Indian Reservation following a joint hearing before the Burns Paiute Tribal Court. The trial court ordered the Appellants excluded from the Burns Paiute Indian Reservation finding each Appellant violated the following sections of the tribe's Exclusion Ordinance which provides that;

Any person, except a tribal member, may be excluded from the Burns Paiute Indian Reservation for committing any of the following acts:

a. the violation of any tribal law or ordinance;

b. the violation of any federal or state law;

. . .

e. any other act that harms the health, welfare, safety, morals, image, cultural traditions, or spirit of the Burns Paiute Tribe.

The trial court found that Appellants, who were members of the Burns Paiute Tribe, had violated tribal laws or ordinances, both traffic and criminal charges. The Appellants had excessively used alcohol although they were not arrested and their conduct after drinking alcohol was judged harmful to the health, welfare, safety and image of the Burns Paiute Tribe. The trial judge ordered them excluded from the reservation. The judge had three police officers standing by in case he decided to exclude Appellants. He assigned one officer to each of the Appellants and directed the officers to take the Appellants to their homes to allow the Appellants fifteen minutes to gather what personal effects they could take and then escort them off the reservation.

The Appellants are Indian men who have lived on the Burns Paiute Reservation between two and seven years. They each live with a woman who is an enrolled member of the tribe. Two of the Appellants are married and one lives as man and wife. One of the Appellants has fathered a child who is an enrolled member of the tribe. Another Appellant is the stepfather of his wife's three children, and considered to be the children's psychological father. The children are enrolled members of the tribe, whom he supports and treats as his own. All of the Appellants have also established close ties with other members of the Burns Paiute Indian community. They are helpful to and voluntarily perform various chores for others in the

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community. They drive their neighbors to town, take them shopping, cut wood, cut and trim their lawns and perform other chores as needed. They are all employed doing seasonal work for the Forest Service.

The Appellants appeal the trial court's order excluding them from the Burns Paiute Reservation presenting the following alleged errors:

1. That the Trial Court failed to review their cases independently. Each has different factors to be considered in their appeal and the Court of Appeals should conduct an independent review of their appeals.

2. Appellants were denied equal protection under the law as they were singled out for exclusion, while no effort has been made to exclude other non-tribal members with criminal records who frequent the reservation.

3. That the Burns Paiute Exclusion Ordinance was not specific, clear or certain and did not provide Appellants with information as to the conduct which could cause them to be excluded from the reservation. They claimed their exclusion would deny them due process and equal protection of the law under 25 USCA Section 1302(8) and Article (8) Section (h) of the Burns Paiute Constitution.

THIS COURT having considered the written arguments, the existing records, the oral arguments of counsel and each of the Appellants, and the trial court order excluding the Appellants from the Burns Paiute Indian Reservation, now finds as follows:

That the Appellants were given the opportunity to have their cases heard separately before the trial court and chose not to do so. There is nothing in the record to indicate that Appellants suffered or that there was any conflict because of multiple representation. No Appellant was denied the right to present evidence during the hearing favorable to him, nor was there any evidence that any one of the Appellants was prejudiced because of evidence presented to justify the exclusion of others. The Appellants were not adversely affected by their joint representation by counsel, nor were they denied the constitutional right of effective assistance of counsel because of the multiple representation. Holloway v. Arkansas, 435 U.S. 475 (1978); State v. Lamar, 698 P.2d 735 (1984).

The Appellants waived their rights for a separate hearing before the trial court and presented no evidence to warrant independent review of their cases by the Court of Appeals.

Appellants claim that they are arbitrarily singled out for exclusion, that other non-enrolled persons who have criminal convictions, frequent the reservation and no effort has been made to exclude them. They claim this is selective enforcement of the law in violation of their right to equal protection as provided by 25 USCA Section 1302 (8) and Article 8, Section (h) of the Burns Paiute Constitution.

3 NICS App. 281, Burns Paiute Tribe v. Dick (February 1994) p. 284

This Court finds that in order for Appellants to show selective or discriminatory enforcement of the exclusion ordinance they must establish (1) that the respondent has not excluded others similarly situated for similar conduct and (2) the decision to exclude was based upon bad faith, or on impermissible grounds as, for example race, religion or the exercise of other constitutional rights.

The appellants provided criminal records of non-members who frequent the reservation against whom petitions for exclusion have not been filed. They offered no evidence that the decision to exclude them was based on impermissible grounds or bad faith in violation of their rights under the Indian Civil Rights Act of 1968, 25 USCA 1302 (hereinafter ICRA).

The due process clause of the Indian Civil Rights Act of 1968 protects individual rights including "liberty." One aspect of liberty is the right to associate with persons of one's choice. The United States Supreme Court has termed this the right of "intimate association." This right applies only to highly personal relationships. See Jarrett v. U.S., 822 F.2d 1438, 1443 (7th Cir. 1987). The Court of Appeals finds that the relationship between the Appellants and their wives and children are highly personal relationships and protected under the liberty provision of the due process clause of the ICRA. The trial court committed reversible error by ordering Appellants excluded from the reservation without considering these relationships and the serious, resulting breakup of the Appellants families and the effect on the tribal community.

This Court finds that the Tribe's exclusion ordinance was not sufficiently explicit to inform those who are subject to it what conduct will render them liable to its penalties. The unfairness of failure to notify potential defendants of the law's scope and reach can constitute a denial of due process. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), Village of Hoffman Estates v. Flipside, 59 S.Ct. 1186 (1982).

The Court of Appeals also finds that the exclusion ordinance is too broadly written. Under its provisions a non- tribal member could be excluded for committing a parking violation on the reservation or having committed an infraction in Florida. Sections (a) and (b). There is no rational basis for these sections to be so broadly written. A law is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability, it violates the first essential of due process of law and is void for vagueness. See Spokane v. Douglass, 115 Wn.2d 171, 177, 795 P.2d 693 (1990).

The appellees argue that the ordinance could be interpreted in that manner but it was not the tribe's policy to do so. Counsel for appellee was unable to answer the Court's query regarding what notice to a non-member would advise him/her or what conduct would make him/her a candidate for exclusion. A law is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability it violates the first essential of due process of law and is void for vagueness. Id.

3 NICS App. 281, Burns Paiute Tribe v. Dick (February 1994) p. 285

The Burns Paiute Exclusion Ordinance as applied to appellants is unconstitutionally overbroad in violation of the equal protection and due process clauses of the ICRA.

ORDER

Based upon the foregoing findings, the trial court order expelling the appellants is hereby reversed.