8 NICS App. 47, TULALIP TRIBES v. JOSEPH (May 2008)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
The Tulalip Tribes, Appellant,
v.
Harold Eugene Joseph, III, Appellee.
No. TUL-CR-FI-2007-0170 (May 22, 2008)
SYLLABUS*
Trial court ordered a criminal complaint dismissed prior to trial based on the court’s conclusion that prosecutor’s offer of proof could not support the charges. Court of Appeals holds that it was error for the court to not allow the case to go to trial. Trial court order remanded for trial on the merits.
Before: Jane M. Smith, Chief Justice; Douglas Nash, Justice; Elizabeth F.M. Nason, Justice.
Appearances: Tom Russell, for Appellant.
OPINION
Smith, C. J.:
This matter came before the Court of Appeals for Oral Argument on May 2, 2008. Tom Russell, Prosecutor, appeared for the appellant Tribes. Appellee did not appear nor did his counsel of record appear.
SUMMARY
1. The Tribes filed a complaint on June 14, 2006, against Mr. Joseph. It cited two counts of Using Unregistered Fishing Gear and two counts of Theft, all arising from Mr. Joseph’s alleged use of two crab pots, without permission, which were registered to another tribal member.
2. On June 26, 2006, the Trial Court found probable cause to proceed with the case.
8 NICS App. 47, TULALIP TRIBES v. JOSEPH (May 2008) p. 48
3. On September 19, 2006, trial was set to proceed, with a jury, on the four charges.
4. Just before the trial was to begin, the Court, based on the offer of proof it had requested from the Tribes, dismissed charges one and two, pertaining to using fishing gear not registered to Mr. Joseph.
5. The trial proceeded on the remaining two charges. Mr. Joseph was found not guilty based on the Court’s interpretation of the theft statute.
6. The Tribes timely appealed the Fishing Gear violations. Briefing was scheduled and completed. Oral arguments were scheduled and held. The Court has found sufficient basis to grant the appeal and remand the case to the Trial Court.
DISCUSSION
Issue #1: Did the Trial Court err in dismissing the fishing gear charges prior to taking any evidence?
Appellant argues that Ordinance 49 does not allow the court to dismiss a prosecution charge. The Code is silent on this specific issue.
It is the court’s inherent duty to interpret and enforce the laws of the Tulalip Tribes. Tulalip Law and Order Code, Title II, § 2.1.1, Purpose and Construction, directs the Court to achieve three (3) goals:
1) to provide for the just determination of every criminal proceeding;
2 to protect the rights of individuals; and
3) to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
While due process and equal protection clauses are usually recognized as applying to individuals’ rights before the court, it is imperative that courts recognize that the Tribe has those same rights to be heard and to present evidence. The prosecutor of the Tribe is representing the membership of the Tribe and the community. That representation is intended reflect the moral compass of the Tribal community by charging those individuals who fail to abide by the laws of the Tribe with criminal sanctions. Once the Tribe has established probable cause to proceed, the court should allow the case to proceed to its conclusion.
In the instant case, the court found probable cause in June to proceed with the case. Absent any motion by the parties, the judge should have allowed the Tribe to present its case against Mr. Joseph. We understand that one directive of § 2.1.1 is to eliminate unjustifiable
8 NICS App. 47, TULALIP TRIBES v. JOSEPH (May 2008) p. 49
expense and delay, but dismissing cases sua sponte is not a practice that should be encouraged in our courts.
On a second review immediately before the trial, the judge asked the prosecutor if the gear was properly registered to James Anderson. When the prosecutor acknowledged that it was properly registered to Mr. Anderson, the judge made a determination that if gear was properly registered to the owner, there could be no violation1 of this section. At first glance, this appears to be a valid assumption, but a closer reading of the Code section brings the issue into a clearer picture.
Ordinance 51, 7.1, Registration of Gear. All boats and gear used in exercising tribal fishing rights shall be registered in the name of the tribal member actually owning or having an interest in that boat or gear and marked in accordance with the procedures established by this Ordinance and Tribal fishing regulations promulgated hereunder. No gear shall be authorized under this Ordinance for use in exercising tribal fishing unless it is so registered and marked. (Emphasis added).
Regulation 2007-013, Other Restrictions. (9) It will be unlawful for a crab fisher to remove or pull a crab pot from the water that is not registered by that fisher, without prior permission from their enforcement program. (11) All commercial pots must be marked with a valid crab pot tag issued by the Tulalip Tribes Enforcement Office. Pot tag numbers are assigned to a given boat. Pots will be transferred and harvested by that boat with the corresponding pot tag number... (14) All subsistence harvesters must possess a subsistence crab fishing permit obtained from the Tulalip Fisheries Office. Subsistence harvesters are allowed 2 pots per permit per boat and a daily limit of 12 crab... (Emphasis added).
The trial judge looked at only one section of Law and Order Code and then made a decision to dismiss. The prosecutor could look to at least one other resolution to determine if a violation had occurred. It doesn’t appear that the judge considered this resolution in his decision to dismiss. At trial, the prosecutor may have had evidence that showed the appellant violated these sections. At the very least, he should have had the opportunity to present his evidence to the Court. If the Court then determined that the sections didn’t apply or that the prosecutor hadn’t met his burden
8 NICS App. 47, TULALIP TRIBES v. JOSEPH (May 2008) p. 50
of proving all the elements of the crime, a dismissal would have been in order. We find that the judge erred in not allowing the case to go to trial.
Based on the foregoing, the appeal is AFFIRMED and the matter remanded to the Trial Court for a trial on the merits.
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.
“I then ruled that Section 7.1 was and could not be violated by the defendant because that section simply requires that gear be registered in the name of the tribal member owing the gear, and since it was so registered, that section did not address the issue of someone other than the registered owner using the gear.” Order on Remand, filed 1/29/08, page 1, section 4.