SCHOENING v. CHEHALIS

6 NICS App. 110, SCHOENING v. CHEHALIS (February 2003)

IN THE CHEHALIS TRIBAL COURT OF APPEALS

CHEHALIS INDIAN RESERVATION

OAKVILLE, WASHINGTON

John Schoening, Appellant,

Chehalis Tribe, Appellee.

No. CHE CIV-3/02-065 (February 10, 2003)

SYLLABUS^*

Trial court issued Order of Exclusion based on Appellant’s failure to comply with a court order. Court of Appeals holds that Appellant’s failure to comply with Court of Appeals’ scheduling order and failure to appear at a hearing on the Tribe’s motion to dismiss necessitate dismissal of the appeal. Trial court order affirmed.

Before: Fred W. Gabourie, Sr., Chief Justice; Elizabeth Fry, Justice; Lorintha Warwick, Justice.

Appearances: John Schoening, Appellant pro se, failed to appear, Appellee Chehalis Indian Tribe appeared by and through their general counsel, Harold Chesnin, Attorney at Law.

OPINION

This matter came before the Chehalis Court of Appeals pursuant to Appellant’s Notice of Appeal filed on September 26, 2002.

Appellant appeals from the Order of Exclusion of the Chehalis Tribal Court, after a hearing and the Court found the appellant failed to comply with the terms and conditions set forth in an Order of the Chehalis Tribal Court. Appellant failed to timely file his opening brief as set forth in the Order Accepting Appeal and Setting Briefing Schedule & Oral Argument. Appellee filed a Motion to Dismiss. We grant the Motion.

Order Accepting Appeal and Setting Briefing Schedule & Oral Argument was filed December 3, 2002. Appellant was served with a copy of Order Accepting Appeal and Setting

6 NICS App. 110, SCHOENING v. CHEHALIS (February 2003) p. 111

Briefing Schedule & Oral Argument on December 3, 2002 which set forth in part: “Appellant’s Opening Brief: no later than 4:00 p.m. on Thursday, January 2, 2003.”

Rule 5.08.020, Title 5, Appellate Rules of the Confederated Tribes of the Chehalis Reservation Law and Order Code sets forth the time line in which Appellant’s brief shall be filed:

5.08.020 Filing Briefs.

Within thirty (30) days of notice that the Court of Appeals accepts review, the party making the appeal shall file with the Court of Appeals a written brief and serve a copy on all parties. The Court of Appeals may allow a longer time for filing, in its discretion. The respondent shall have thirty (30) days after service of appellant's brief in which to file a reply brief, or statement and shall serve a copy on each party. A response shall be allowed the appellant in the Court's discretion. All briefs shall be accompanied by an affidavit of service on opposing parties.

Appellant failed to file his opening on the date set forth in the Order, or at all.

Appellee’s Motion to Dismiss was filed on January 7, 2003. Notice of Hearing on Appellee’s Motion was served upon Appellant by Certified Mail, Return Receipt Requested, and receipt signed by Appellant.

Hearing on Appellee’s Motion to Dismiss was heard January 31, 2003.

BACKGROUND

On March 7, 2002 a member of the Chehalis Business Committee filed a Petition for Exclusion of Appellant from the jurisdiction of the Chehalis Indian Tribe alleging appellant violated criminal and civil laws of the Chehalis Tribe.

JURISDICTION

This Court has personal jurisdiction over Appellant John Schoening, a non-Indian, on the grounds that he was residing within the exterior boundaries of the Chehalis Indian Reservation, giving rise to territorial as well as personal jurisdiction. This Court has subject matter jurisdiction on this case pursuant to the Confederated Tribes of the Chehalis Reservation Title I Court Procedures, Chapter 1.201 and 1.202, which states in part,; that the Court of Justice shall have the fullest personal and subject matter jurisdiction permissible under applicable law.

6 NICS App. 110, SCHOENING v. CHEHALIS (February 2003) p. 112

FACTUAL BACKGROUND

On March 7, 2002 a member of the Chehalis Business Committee filed a Petition For Exclusion of Appellant from the jurisdiction of the Chehalis Indian Tribe alleging appellant violated criminal and civil laws of the Chehalis Tribe that Appellant committed numerous acts that violated the Criminal or Civil laws of the Chehalis Indian Tribe including evading arrest, breach of peace while under the influence of alcohol or drugs and that Appellant was a danger to the community.

Appellant filed his Notice of Appeal on September 26, 2002, the Order Accepting Appeal and Setting Briefing Schedule & Oral Argument was filed December 3, 2002. Appellant was served with a copy of Order Accepting Appeal and Setting Briefing Schedule & Oral Argument on December 3, 2002. Appellee’s Motion to Dismiss, on the grounds that Appellant had failed to timely file his brief, was filed on January 7, 2003. Notice of Hearing on Appellee’s Motion was served upon Appellant by Certified Mail, Return Receipt Requested, and receipt thereof signed by Appellant.

CONCLUSION

Appellant’s non-compliance with the Court’s Order Accepting Appeal and Setting Briefing Schedule & Oral Argument and Rule 5.08.020, Title 5, Appellate Rules of the Confederated Tribes Of The Chehalis Reservation Law and Order Code together with the fact that Appellant’s absence deprives the Court of hearing the Appellant and therefore leaves this Court no choice but to grant Appellee’s Motion to Dismiss this appeal.

ORDER

IT IS HEREBY ORDERED that the Appellant’s Motion To dismiss Appeal be granted. The appeal is dismissed and the Trial Court is affirmed.

The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.