Baldy, et al. v. Hoopa Valley Tribal Council, et al.

3 NICS App. 286, Baldy v. Hoopa Valley Tribal Council (March 1994)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

No. C-92-033 (March 16, 1994)

SUMMARY

Appeal of Trial Court order denying Appellants' motion for summary judgment and upholding approval by Tribe of an enrollment application which turned on paternity determination. Plaintiff appealed on grounds of inadequate notice of paternity hearing.

Court of Appeal affirmed summary judgment order, ruling that publishing and posting notice of hearing which includes time, date, place, and purpose of hearing, is sufficient to protect the due process rights of unknown interested parties.

FULL TEXT

Before: Chief Justice Elbridge Coochise, Associate Justice Charles Hostnik, and Associate Justice John L. Roe.

Appearances: Lyle E. Baldy, Sr., Appellant; Steven Harvey, attorney for Appellant Baldy; Ann Williams, attorney for Respondent Hoopa Valley Tribal Council, et al.

NATURE OF ACTION

This action commenced on December 21, 1992, when Lyle E. Baldy, Sr., et al., filed a complaint against the Hoopa Valley Tribal Council and the Enrollment Committee, appealing defendants' enrollment of Lola McCovey into the Hoopa Valley Tribe. Plaintiffs alleged: (1) inadequate notice prior to the hearing; (2) ultra vires action by the Tribal Council; and (3) lack of notice deprived plaintiffs of the opportunity to be heard. Both parties moved for summary judgment. On November 1, 1993, the trial court granted defendant's motion and denied plaintiff's motion. Lyle E. Baldy, Sr., et al., appeal the trial court denial of summary judgment.

3 NICS App. 286, Baldy v. Hoopa Valley Tribal Council (March 1994) p. 287

COOCHISE, Chief Justice:

Lyle E. Baldy Sr. appealed from an Order Denying Motion for Summary Judgment, contending genuine issues of material facts existed which prevents entry of summary judgment. Appellants also contend that they were denied due process. The Court disagrees and affirms the trial court.

FACTS

On November 2, 1989, Hoopa Valley Tribal Council, on the recommendation of the Hoopa Tribal Enrollment Committee, requested that the Tribal Court judge hold a hearing and render a decision regarding the paternity of Lola McCovey, a tribal enrollment applicant. Lola McCovey applied to the Enrollment Committee for enrollment on the basis of her father's, Clarence Baldy, tribal lineage. Paternity questions existed as Clarence Baldy had died some years before and was not listed on Lola McCovey's birth certificate as the father.

On both January 9, 1991, and January 16, 1991, The Kourier, the only local newspaper of general circulation in the tribal community, published a Public Notice which stated that the tribal court was hearing the tribal enrollment application of Lola McCovey on January 25, 1991. The notice stated that any tribal member or other interested party would be allowed to testify.

Notice regarding the January 25, 1991, hearing was posted not less than five days before the hearing date, as was the court clerk's custom, on the bulletin board in the lobby of the Neighborhood Facilities building on the reservation. This is the location where all notices of general interest to the Tribe are regularly posted.

On January 25, 1991, Judge Golden heard testimony regarding Lola McCovey's paternity for enrollment purposes. On January 29, 1991, Judge Golden wrote to the Hoopa Valley Tribal Council and recommended the enrollment of Lola McCovey, pursuant to Section 1 of the Enrollment Ordinance, "unless there is some other problem that has not been called to the Court's attention."

On March 18, 1991, the Hoopa Valley Tribal Council approved the enrollment application of Lola McCovey.

On February 11, 1992, and April 8, 1992, Appellant, Valerie Harvey, Clarence Baldy's sister, opposed the enrollment of Lola McCovey in letters to the Enrollment Committee. In Valerie Harvey's letter of April 8, 1992, she requested a meeting with the Enrollment Committee.

On April 9, 1992, Valerie Harvey attended a meeting of the Enrollment Committee to challenge Ms. McCovey's enrollment based upon the paternity determination.

3 NICS App. 286, Baldy v. Hoopa Valley Tribal Council (March 1994) p. 288

On June 22, 1992, the Enrollment Committee, as directed by the Tribal Council, advised Valerie Harvey by letter to file a complaint with the Tribal Court in accordance with Section 8.5 of the Enrollment Ordinance.

On December 21, 1992, Valerie Harvey filed her complaint appealing the Tribal Council and Enrollment Committee's enrollment of Lola McCovey pursuant to 8.5.2 of the Enrollment Ordinance. Valerie Harvey argued: (1) inadequate notice prior to the January 25, 1991 hearing, (2) ultra vires action by the Tribal Council, and (3) the intentional or inadvertent lack of notice which deprived appellants of the opportunity to be heard.

On March 1, 1993, the Tribal Council and Enrollment Committee filed a motion for summary judgment. Both parties agreed to a ruling on the summary judgment motion without oral argument.

On November 1, 1993, the tribal court granted the Tribal Council and Enrollment Committee's motion for summary judgment finding no material issues of disputed fact.

The Notice of Appeal was filed on November 11, 1993, and the appeal was heard on February 10, 1994. Neither party filed appellate briefs.

PROCEDURE

The appellants filed their complaint under Section 8.5.2 of the Enrollment Ordinance, which states:

Appeals from disenrollments, denials of enrollment or blood degree corrections shall proceed in the Tribal Court pursuant to the sections of tribal law governing civil actions and civil rules of court except where specifically provided in this Ordinance. No appeal may be brought under this subsection unless it is filed within one year of the final decision of the Council.

We construe Appellants' initial letter of February 11, 1992 to the Enrollment Committee contesting Ms. McCovey's enrollment to meet the one year deadline for such appeals.¹

ADEQUATE NOTICE

The appellants challenge the Tribal Council's action to enroll Lola McCovey on the basis that they did not have adequate notice of the January 25, 1991, hearing that determined paternity

3 NICS App. 286, Baldy v. Hoopa Valley Tribal Council (March 1994) p. 289

for enrollment purposes. Notice to persons whose identity cannot be reasonably ascertained is customarily given by the Hoopa Valley Court Clerk by publication and posting. This is not uncommon.

The Appellants argued that the federal notice standard in determining heirs of allottees or heirs of deceased allottees should be adopted and applied by the tribal court in this action. The Appellees argued that in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the United States Supreme Court concluded that tribal governments are the proper forums to interpret the Indian Civil Rights Act.

However, if the Court was to rely on federal notice standards, appropriate notice is that notice which is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections...but with due regard for the practicalities and peculiarities of the case..." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1949).

The trial court acknowledged that while the federal standard of notice could possibly be adopted, it had not yet been adopted at Hoopa. The customary notice by publication and posting, when there are unknown interested parties, was the accepted practice of the trial court at the time of the hearing. The trial court declined to adopt the federal notice requirement and retroactively apply the standard. The Court of Appeals agrees.

Notice of the January 25, 1991 hearing was published twice in The Kourier, once 16 days prior, and once 9 days prior to the hearing date. The published notice stated that any tribal member or other interested person would be allowed to testify and included the purpose, date, time, and place of the hearing.

The Kourier is the only local newspaper of general circulation in the community. The newspaper is published weekly, covering local news in Hoopa, California and the surrounding area. It is widely read by tribal members. Hoopa School district functions, public and legal notices as well as other local news is regularly published. It is clear that publication in The Kourier was likely to inform the interested persons of the Hoopa Valley Tribe of pending actions. Publication in The Kourier was the standard practice of the trial court when notifying interested persons who could not be ascertained of pending actions.

While the Appellants acknowledged that The Kourier regularly published legal notices of the Hoopa Valley Tribal Court, they also argued that other methods were more likely to inform tribal members of the hearing. When asked what other methods were available, Appellants suggested the tribal newsletter. However, the tribal newsletter is a monthly publication, sporadically published and did not customarily provide legal notice.

Appellants argued that those persons directly impacted should receive personal notice. Enrollment matters, however, concern every member of the Hoopa Valley Tribe. While the

3 NICS App. 286, Baldy v. Hoopa Valley Tribal Council (March 1994) p. 290

Appellants conceded that notice does not require notice by mail to each member of the Hoopa Valley Tribe, they later advocated individual notice rather than notice by publication to tribal members, even though this is not typical notice.

Assuming, arguendo, that every member of the Hoopa Valley Tribe has standing to contest enrollment matters, does this entitle every member to personal notice? Immediate family members are not affected by an enrollment decision any more than other tribal members. Even so, Julie McKinnon, one of the Appellants, was served by mail, as were other family members. Regardless, the method of notice advocated by the Appellants would require notice by mail to approximately 2,000 tribal members.

To adopt such notice requirement would not only unduly burden the court clerk's office consisting of one employee, it is also unnecessary in light of the additional custom of posting legal notices in the Neighborhood Facilities Building. The Neighborhood Facilities Building is a community center of the Hoopa Valley Tribe, located on the reservation and frequented by a large majority of tribal members. Appellee noted that one of the appellants works at the building. Appellees also argued that Hoopa Valley is a small community and as such, news travels fast.

Notice by publication and posting is reasonably calculated to inform tribal members of actions pending in tribal court. Therefore, notice was proper and adequate to inform tribal members of pending hearings.

NEWLY DISCOVERED EVIDENCE

Appellants argued the existence of new evidence and, therefore, requested a remand to the trial court for a complete and accurate record. This new evidence consists of the probate of the estate of Clarence Baldy's father in In the Matter of the Estate of Newton Baldy, Sr., Probate IP SA 489N 90, wherein the Judge determined, on the basis of Newton Baldy's previous testimony in previous probated actions, that Clarence Baldy died without issue. The question before this Court is whether a probate hearing, which was conducted one month after the trial court determined paternity, constitutes new and additional evidence that requires a remand to the trial court. Section 1.7.06 of the Hoopa Valley Appellate Code states that:

The same record and evidence that was used in the Trial Court shall be used in the appellate proceedings. Only in extreme and rare circumstances which would affect the proper application of justice and the rights of the appellate (sic) shall any additional evidence be allowed in the appellate proceedings.

The probate occurred one month after the trial court hearing. This Court finds that the decision in Estate of Newton Baldy, Sr. does not amount to new evidence under the Appellate Code.

3 NICS App. 286, Baldy v. Hoopa Valley Tribal Council (March 1994) p. 291

COSTS

Enrollment Ordinance 8.5.6 mandates the imposition of court costs and reasonable attorney fees on the Appellants. The Court has no discretion in this matter. Therefore, this case should be remanded to the trial court to determine the costs and fees of this appeal.

ORDER

IT IS HEREBY ORDERED that the trial court is affirmed and that this matter is remanded for a determination of costs and fees to be imposed on Appellants.

HOSTNIK and ROE, Associate Justices, concur.

This appeal does not concern a disenrollment, denial of enrollment or blood degree correction. The appellant's letter of February 1992, and the complaint contested the enrollment of Lola McCovey. Therefore this is an appeal from the Tribal Council's decision to enroll Lola McCovey.