JOHNS AND MCGHEE v. ALLEN

6 NICS App. 196, JOHNS AND MCGHEE v. ALLEN (October 2004)

IN THE SKOKOMISH TRIBAL COURT OF APPEALS

SKOKOMISH INDIAN RESERVATION

SKOKOMISH, WASHINGTON

Raymond Johns and Leslie McGhee, Appellants,

Gracie Allen, Respondent.

No. SKO CV 06/03-171 (October 22, 2004)

SYLLABUS^*

Trial court issued order evicting the nephew of a deceased tribal member from trust property that had been bequeathed to the nephew by the tribal member but had subsequently been deeded to the tribal member’s granddaughter prior to the tribal member’s death. Court of Appeals holds (1) the United States is not an indispensable party in a suit that seeks only to determine rights among tribal members, and (2) the trial court had general jurisdiction to issue an order of eviction even if the Eviction Procedures Act relied upon by the trial court was inapplicable to the dispute at bar. Trial court order affirmed.

Before: Randal E. Steckel, Chief Justice; Lisa Atkinson, Justice; Sam Stiltner, Justice.

OPINION

This matter came before the Skokomish Tribal Court of Appeals pursuant to the Appellant’s notice of appeal filed on Feb. 24 2003.

I. JURISDICTION

This Court has personal, subject matter and territorial jurisdiction to hear this case because all the parties are Skokomish Tribal Member and Tract No. 120-1003 is located within the exterior boundaries of the Skokomish Tribal Reservation. Jurisdiction is based on the Constitution of the Skokomish Indian Tribes, Article 1.

II. STANDARD OF REVIEW

The Skokomish Tribal Code is silent regarding the standard for appellate court review of a trial court decision. In the absence of any specified standard of review, we review issues of

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fact under the “clearly erroneous” standard and issues of law de novo.

III. FACTUAL & PROCEDURAL BACKGROUND

On April 5, 1988, Bertha Visser, a Skokomish Tribal Member, executed her last will which gave her interest in Tract No. 120-1003 to her grandson, Leslie McGhee. Tract No. 120-1003 is located on the Skokomish Reservation in Mason County. Tract No. 120-1003 is designated as trust land.

On Sept. 12, 1988, 5 months after her will was executed, Bertha Visser deeded her interest in Skokomish Tract No, 120-1003 to her niece, Gracie Allen. The deed was prepared by the Bureau of Indian Affairs.

On April 24, 1991, Bertha Visser died. No modification to her will or deed had taken place since 1988.

On October 22, 1992, Keith Burrows, an Administrative Law Judge with the U.S. Department of Interior Office of Hearings and Appeals, issued an order approving Bertha Visser’s Will and Decree of Distribution. Pursuant to said order the estate was distributed to family members but Tract No. 120-1003 was not mentioned in the distribution as it was determined that Bertha Visser’s interest in Tract No. 120-1003 had been extinguished as of Sept. 12, 1988 when she deeded the land to Gracie Allen.

Without discussing what occurred in the intervening years, on June 3, 2003, Gracie Allen, beneficiary of Tract No, 120-1003 filed a complaint for unlawful detainer and requested the Skokomish Tribal Court to evict Raymond Johns and Leslie McGhee from Tract No. 120-1003.

The matter was heard by the Skokomish Tribal Court, Judge Michelle Demmert presiding, and on Jan 18th, 2003, the Tribal Court issued an order evicting the above parties from said tract.

Mr. Johns and Mr. McGhee then appealed.

IV. DISCUSSION

A. The United States Government is Not an Indispensable Party to this Action

Appellants argue that the United States is an indispensable party, relying on the following language in Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983):

Under this statutory design the United States is an indispensable party in any action determining a dispute arising over the possession of allotted land by virtue

6 NICS App. 196, JOHNS AND MCGHEE v. ALLEN (October 2004) p. 198

of its trust relationship and state courts do not have any jurisdiction over such disputes.

Id. at 721, F.2d 1280. However, this language is dicta. Begay involved consolidated appeals in actions brought in federal court under the General Allotment Act, 25 U.S.C. §345. There was no issue in Begay regarding whether the United States was an indispensable party because “[t]he United States was joined as a party defendant in both actions.” Id. at 721 F.2d 1276.

Further, Begay did not concern tribal court jurisdiction. The General Allotment Act preempts state jurisdiction, but it does not follow that tribal jurisdiction is necessarily preempted. Cf. Conroy v. Conroy, 575 F.2d 175 (8th Cir. 1978), holding that a tribal court had jurisdiction in a divorce case to order a division of land allotted under the General Allotment Act (only the Secretary of the Interior had the power to effect the partition of allotted land, but the tribal divorce court could order a party to seek it). Although the trial court’s decision may not be binding on the Secretary of the Interior, it is binding as to the rights of the parties before it.

We conclude that the United States is not an indispensable party and we find no impediment to tribal court jurisdiction in this type of case.

B. The Skokomish Tribal Court does have authority to evict the Appellants from Tract No. 120-1003.

Although this Court has concerns with the applicability of the Skokomish Eviction Procedures Ordinance being used in this case¹, we do find that the court did have authority to order an eviction from Ms. Allen’s land pursuant to the Skokomish Constitution and the rules of Civil Procedure. Article 1, Section 1 of the Skokomish Constitution states: “Except as prohibited by the Treaty of Point No Point and Federal law, the Skokomish Tribe shall have jurisdiction over all persons, property, lands, waters, airspace and resources and all activities occurring within the exterior boundaries of the Skokomish Indian Reservation.” (underline ours.) Furthermore, under Civil Rule 52, Jurisdiction., the rule notes “No civil suit shall be brought in the Skokomish Tribal Court unless the event which gave plaintiff a basis for the suit on the reservation and all defendants live, work, or own property on the reservation…”

In the case at bar, Tract No. 120-1003 lies within the exterior boundary of the reservation and all parties are Skokomish Tribal Members. Thus, even if the eviction ordinance is not applicable, the trial Judge had ample jurisdiction to determine all matters at issue.

6 NICS App. 196, JOHNS AND MCGHEE v. ALLEN (October 2004) p. 199

V. ORDER

Based on the foregoing, the judgment of the trial court is affirmed and remanded for entry of consistent orders with those dated December 18th, 2003. Furthermore, reasonable appellant attorney fees are granted, to be calculated by the trial court at a further hearing.

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.

Eviction Procedures Ordinance §2.06.004 APPLICATION, states “This Eviction Procedures Ordinance applies only to evictions from rental housing. Evictions pursuant to a judgment of foreclosure are governed by the Skokomish Mortgage Lending, Foreclosure and Eviction Ordinance.” (Emphasis added.) This suit was filed on June 5, 2003 and 2.06.004 was adopted on April 3, 2004.