3 NICS App. 292, Chehalis Tribe v. Charles (March 1994)
IN THE CHEHALIS TRIBAL COURT OF APPEALS
CHEHALIS INDIAN RESERVATION
OAKVILLE, WASHINGTON
Chehalis Indian Tribe v. Charles
No. CHE-EXCL-7-93-043 (March 17, 1994)
SUMMARY
Appeal of Trial Court order affirming exclusion of Defendant by Business Committee on grounds that Business Committee did not meet burden of proving by "reasonable certainty" that: (1) exclusion was necessary to protect community; and (2) individual committed an act which constitutes grounds for exclusion.
Appellate Court remanded case to Trial Court upon finding that Trial Court abused its discretion in upholding exclusion because there was a lack of evidentiary support for the order.
Appellate Court also held that the burden of proof rests with plaintiff Tribe to establish with reasonable certainty that exclusion is warranted based on evidence presented in Court.
FULL TEXT
Before: Chief Justice Elbridge Coochise, Associate Justice Marguerite Edwards and Associate Justice Mary T. Wynne.
Appearances: Patricia Charles, pro se Appellant; Ray Canales, spokesperson for Respondent, Chehalis Indian Tribe.
NATURE OF THE ACTION
Chehalis Business Committee filed petition, pursuant to Chehalis Exclusion Ordinance, Section 8.03.010, to exclude Appellant from the Chehalis Indian Reservation for disturbing the peace and delivering alcohol to a minor. Parties did not submit any evidence to the court. Trial Court affirmed Business Committee's exclusion of Appellant. Appellant appeals the order.
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COOCHISE, Chief Justice:
Patricia Charles appeals the order affirming the Chehalis Business Committee's petition to exclude her from her home and the Chehalis Tribal Community.
BACKGROUND
The Chehalis Business Committee filed a petition requesting the exclusion of Appellant, Patricia Charles, from the Chehalis Indian Reservation as provided in 8.03.010 (a), (b), (d), and (s) of the Chehalis Exclusion Ordinance. At the trial, Charles requested a continuance due to counsel unable to be retained on five (5) days notice. The trial judge denied the motion. Charles was excluded on charges of disturbing the peace and delivering alcohol to a minor. No exhibits or other evidence was submitted into the trial court record.
FAILURE TO MEET BURDEN
a. Definition of reasonable certainty
An order for exclusion may be entered, "if, based on the evidence presented, the Court is reasonably certain that:
a) The individual. . . committed an act or omission which falls within one or more grounds for exclusion; and
b) That removal or exclusion is necessary to protect the health, safety, or welfare of the community."
Chehalis Exclusion Code 8.04.070.
Since reasonable certainty is not defined in the Code, the Court looked to established principles of law. Traditionally, the standard of proof in a civil case is preponderance of the evidence. At Chehalis, the standard is reasonable certainty for the removal or exclusion of a non-member, but this standard is not defined in the Chehalis Law and Order Code.
Preponderance of the evidence is defined as the greater weight of the evidence, or evidence which is more credible and convincing to the mind. Black's Law Dictionary (5th ed.). The burden of proof in criminal cases is "beyond a reasonable doubt", a higher standard of proof than "preponderance." "Reasonable certainty," then, is arguably a greater standard of proof than "preponderance," but less than "beyond a reasonable doubt."
"Reasonable certainty" is not, in terms of proof of damages, mere conjecture or likelihood or even a probability of such injury. Black's Law Dictionary (5th ed.). "Reasonable certainty," then, is a greater standard than "reasonable cause," as "certainty" denotes a higher level of
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knowledge. Black's Law Dictionary (5th ed.) defines certainty as the "absence of doubt; accuracy; precision; definite. The quality of being specific, accurate and distinct."
The Court is put in a difficult position when the standard of proof is not defined and there are no Chehalis opinions, that we are aware of, that interpreted or applied the burden of proof in exclusion cases. Without such authority, it is the role of the Court to define the burden of proof consistent with the laws passed by the Chehalis governing body. The Court finds that the burden was not met in this case.
The standard for ordering the removal or exclusion of someone requires the trial court to decide, based on the evidence presented, that the court is reasonably certain that: 1) the individual committed an act which falls under one or more grounds for exclusion, and 2) the removal is necessary to protect the health, safety or welfare of the community. There was no evidence presented to the trial court, only unsubstantiated allegations; therefore, no basis exists for the trial court's determination to exclude Charles.
b. Unlawful conduct subject to exclusion
Pursuant to 8.04.010 of the Chehalis Exclusion Code, the Business Committee filed a petition requesting the removal or exclusion of Patricia Charles.2 Any person not a member of the Chehalis Tribe is subject to exclusion. Che. Excl. Code sec. 8.01.030. Charles has resided on the reservation in the family home for many years, raised a family, and participated in tribal activities, only recently discovering that she was not an enrolled member of the Chehalis Tribe.
The appellant was excluded under 8.03.010 (a), (b), (d), and (s) which state:
Any person subject to this title may be removed and excluded from the territorial jurisdiction of the Chehalis Tribe for any of the following reasons:
a) Committing an act which violates the criminal or civil laws of the Chehalis Tribe, whether or not the Tribe has jurisdiction to prosecute the person for the act.
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b) Any act which violates the criminal laws of the State of Washington or of the United States of America, whether or not the person may be prosecuted by the State or United States.
. . .
d) Failure to comply with any legal process, notice, subpoena, order, or other decree issued by the Chehalis Court of Justice, General Council, or Business Committee or any tribal administrative procedure panel.
. . .
s) Repeated breaches of the peace including but not limited to those breaches of the peace committed while under the influence of alcohol or drugs.
Charles argued that while charged, she was not tried and convicted, and was therefore innocent; yet, these charges are the basis for excluding her from her home and community. The Chehalis Tribe argued that convictions are not required, as the exclusion ordinance is a civil code and applicable whether tribal, state or federal jurisdictions could convict a person.
To charge and convict someone are two different stages in the criminal process. The first requires probable cause while the second requires proof beyond a reasonable doubt. As exclusion is a civil ordinance, there is a different standard of proof than in a criminal proceeding. According to section 8.04.070 of the Exclusion Ordinance, the Chehalis Tribe must prove to a reasonable certainty that Charles committed an unlawful act.
The Chehalis Tribe failed to introduce any evidence into the record. The complaint was read into the record by the trial judge, at which point the Chehalis Tribe's spokesperson stated: "as far as presenting the case, the Tribe would just read the same thing that Your Honor has. And, if necessary, the case files can be brought up on each of the cases to substantiate the claimed harm." (Verbatim Record, page 9, lines 7-11). Chief Wyman testified that the Chehalis Tribe did not need to add to the complaint. Id. at lines 23-24. The record is unclear as to whether the trial judge specifically ruled on the introduction of evidence proposed for submission by the Chehalis Tribe. Even so, no exhibits or testimony was submitted into the record.
Nothing was submitted to substantiate the facts alleged in the petition to exclude. As Charles was not tried, there were no convictions; nor were there any witnesses who testified that the Appellant committed any of the alleged acts. The Chehalis Tribe argued that Charles admitted at trial to committing unlawful acts. This Court cannot discern party admission from the Verbatim Record.
The Chehalis Tribe relied on the petition for exclusion and conclusory statements to prove that Charles committed the acts alleged in the petition and that exclusion was, therefore, warranted. The Chehalis Tribe failed to prove to a reasonable certainty that the basis for the
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exclusion was well-founded. Mere accusations that Charles committed or engaged in unlawful conduct is insufficient without evidence to support that accusation to a reasonable certainty.
c. Exclusion necessary to protect the health, safety or welfare of the tribal community
The purpose of the Chehalis exclusion ordinance is "to provide a process for exercising the Chehalis Tribe's authority to remove and exclude, from the territory of the Tribe, persons who are not members of the Chehalis Tribe whose presence may be injurious to the peace, health, or welfare of the Tribe." Section 8.01.010. Under section 8.04.070, the Chehalis Tribe must prove to a reasonable certainty that Charles' exclusion from the community is necessary to protect the health, safety or welfare of the tribal community.
Charles argued in the notice of appeal that she has lived on the reservation and has been recognized as part of the Chehalis Tribal community since 1955, the year she was adopted by a Chehalis tribal member. Charles also argued that she participated in Chehalis tribal activities, raised her family on the reservation, and that her children attended the local public school. She also argued that to exclude her from her home and community would cause extreme hardship and the break up of her family as she has no money and nowhere else to go.
The Chehalis Tribe did not provide any witnesses or evidence of any other nature that demonstrated that the health, safety or welfare of the tribal community was threatened by Charles' presence on the reservation. Conclusory statements are not things seen, tasted, felt, or otherwise perceived through the senses of the witness testifying and, therefore, are not competent evidence.
d. Procedure in exclusion hearings
During the course of the Chehalis Tribe's oral argument, it came to the Court's attention that apparently this matter was before the Business Committee before the petition to exclude was filed with the trial court.
The Exclusion Ordinance states that the Business Committee may file a written petition with the court requesting the removal or exclusion of a non-member. Section 8.04.010. At the hearing, both the petitioner and respondent shall have an opportunity to present witnesses and other evidence. Section 8.04.060.
While the Business Committee may have conducted a meeting as to whether Charles should be excluded, this does not mean that at the exclusion hearing before the trial court, the evidence admitted at the Business Committee hearing is automatically admitted before the trial court. This is not the case. Because the Business Committee finds that Charles should be excluded does not mean the court will also reach that finding without substantial evidence.
Under the law of the Chehalis Tribe, the role of the plaintiff, in this case, the Business Committee, is to file a petition to exclude and then to prove that the respondent must be excluded
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based on a reasonable certainty that he or she committed an act subject to exclusion, and that exclusion is necessary to protect the health, safety or welfare of the community. Section 8.04.070.
While there may have been some confusion as to the role of the Business Committee's meeting and the court hearing, the law requires that in the court of law, the burden of proving the necessity of exclusion rests with the plaintiff, the Chehalis Tribe. Therefore, plaintiff must prove to a reasonable certainty that exclusion is warranted based on the evidence presented at the trial court.
CONCLUSION
Under section 5.09.010 of the Code, the Court of Appeals, "may dismiss an appeal, affirm or modify the decision being reviewed, reverse the decision in whole or in part, order a new trial, or take any other action as the merits of the case and the interest of justice may require."
This Court concludes that the trial court manifestly abused its discretion in finding that exclusion was warranted, without taking evidence to support the allegations as previously discussed in this opinion. Accordingly, this Court must reverse the trial court.
During oral argument Charles expressed the willingness and desire to correct any problems occurring at her residence and to work with the Business Committee to remain in her home; however, she has yet to contact the Chehalis Tribe. The parties expressed a desire to settle this matter and the Court strongly encourages the parties to do so.
This Court finds that the Chehalis Tribe did not meet its burden of proof of reasonable certainty to exclude Charles; therefore,
ORDER
IT IS HEREBY ORDERED that the trial court is reversed and that this matter is remanded for a rehearing. The trial court is ordered to take admissible testimony and evidence from the witnesses of both parties who have personal knowledge of the appellant committing or not committing acts subject to exclusion, or other evidence which would demonstrate such an act, and that exclusion is necessary to protect the health, safety or welfare of the Tribe to a reasonable certainty.
EDWARDS and WYNNE, Associate Justices, concur.
The Chehalis Business Committee is the governing body of the Confederated Tribes of the Chehalis. The exclusionary powers as exercised by the Chehalis Business Committee are not provided for in the Constitution and Bylaws, Article V, Section 1 of the Powers and Duties of the Chehalis Business Committee. This Court is concerned about the lack of constitutional authority which would empower the Committee to exercise exclusionary powers. However, this was not an issue properly before this Court and, accordingly, the Court makes no ruling on this issue.