11 NICS App. 100, HOOPA VALLEY TRIBE v. JONES (December 2013)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
Hoopa Valley Tribal Council Petitioner/Appellee,
v.
Arthur Pliny Jones, Respondent/Appellant.
No. A-12-002 {C-12-042} (July 20, 2013, December 09, 2013)
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Lisa E. Brodoff, Chief Judge; Michelle Demmert, Judge; Matthew L.M. Fletcher, Judge. |
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11 NICS App. 100, HOOPA VALLEY TRIBE v. JONES (December 2013) p. 101
Introduction and Procedural History
(1) Repeated commission of a crime or breach of peace as defined by Tribal, State or Federal laws.
5 HVTC §§ 1(1) and (4). More recently, in 2009, the Tribal Council enacted Resolution No. 09-180, Priority for the Exclusion of Individuals Who Distribute Illegal Drugs within the Exterior Boundaries of the Hoopa Valley Indian Reservation. The final clause of Resolution No. 09-180 states “The Hoopa Valley Tribal Council hereby declares that persons trafficking drugs within the exterior boundaries of the Hoopa Valley Indian Reservation have committed an unauthorized entry and they will be placed on a priority list for exclusion from the Hoopa Valley Indian Reservation.”
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Standard of Review
Questions of law will be decided with no deference granted to the tribal court decision.
Matters of discretion are those that are not controlled by statute. See, e.g., In the Matter of E.M., 9 NICS App. 1, 6 (Hoopa Valley Tribal Court of Appeals 2009). The abuse of discretion standard is highly deferential to the lower court. See, e.g., Hoopa Valley Tribal Court v. Taylor, 7 NICS App. 3, 5 (Hoopa Valley Tribal Court of Appeals 2005) (“Although the abuse of discretion standard can be defined in a number of ways, under that standard an appellate court will reverse a trial court only where it has ‘a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.’”) (citation omitted); In the Matter of Robertson, 4 NICS App. 111, 118 (Hoopa Valley Tribal Court of Appeals 1996) (holding that if “substantial evidence [is] in the file to support the trial judge’s conclusion,” the decision will be reversed as a “manifest abuse of discretion”).
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the Legislative Procedures Act; (6) the trial court erred in both denying Jones a jury trial and excluding character evidence; and (7) the exclusion petition constitutes selective prosecution.
We address each of these challenges in turn.
1. Authority of the Hoopa Tribal Court
We reject Jones’s claim that the Hoopa Tribal Court does not have jurisdiction to issue an exclusion order. As the Tribal Council points out, Jones did not raise this argument at the trial court level. However, lack of subject matter jurisdiction may be raised by the parties or the court at any time in the proceedings as it goes to the very authority of the court to hear the case. “Lack of subject matter jurisdiction is never waived and can be raised by any party or the court at any time.” Alire v. Jackson, 65 F. Supp. 2d 1124, 1125 (D. Or. 1999) (citations omitted). Therefore, we go to the merits of the argument.
We hold that the Hoopa Valley Tribal Court does have jurisdiction to issue the exclusion order. Twice, the Hoopa Valley Tribal Council has legislated in this area, and never has the Council asserted that the Exclusion Ordinance is criminal in nature. The council easily could enact legislation utilizing exclusion as a criminal sanction, as other tribes have. See Patrice H. Kunesh, Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37 N.M. L. Rev. 85, 113-18 (2007) (discussing several exclusion ordinances treating exclusion as a civil sanction, and several others treating exclusion as a criminal sanction). The Exclusion Ordinance does not require the Tribal Court to first determine that a crime against the People of the Hoopa Valley Tribe has been committed before exclusion is authorized, only that an individual has a record of criminal activity under “Tribal, State or Federal laws.” 5 HVTC § 1(1). Importantly, the Tribal Council’s purpose in enacting the Exclusion Ordinance was not punishment, but public safety. See Ordinance No. 2-86 at 1 (“WHEREAS, It is the desire of the Hoopa Valley Business Council to enact an Ordinance governing exclusion of persons from the Hoopa Valley Indian Reservation for the purpose of enforcing laws to protect the territory and people within the jurisdiction of the Hoopa Valley Tribe….”). As the United States Supreme Court held in Smith v. Doe, 538 U.S. 84 (2003), “[an] Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant factor in our determination that the statute’s effects are not punitive.” Id. at 102. The Tribal Council’s desire to protect the people of the Hoopa Square is rationally connected to its decision to authorize the exclusion of persons with a record of repeated criminal activity.
Even if we assume, only for purposes of this argument, that exclusion orders under Title 5 are exclusively criminal penalties, Public Law 280, upon which Jones relies to suggest that the Hoopa courts have no criminal jurisdiction, does not divest tribal governments of their inherent authority to punish its own members for criminal activity. All authorities that have reviewed this question are in agreement. See, e.g., Southern Ute Tribe v. Frost, 19 Indian L. Rep. 6132, 6132 (Southern Ute Tribal Court 1992); Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990); Hester v. Redwood County, 885 F. Supp. 934, 939 (D. Minn. 2012); Cabazon Band of Mission Indians v. Smith, 34 F. Supp. 2d 1195, 1197 (C.D. Cal. 1998); State v. Schmuck, 850 P.2d 1332, 1343 (Wash. 1993); Cohen’s Handbook of Federal Indian Law § 6.04[3][c], at 555-56 (2012 ed.).
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The Hoopa Constitution also appears to assume tribal authority to punish criminal violators, if the Tribal Council so chooses. See Constitution and Bylaws of the Hoopa Valley Tribe, Art. IX, § 1(k) (recognizing Tribal Council authority “[t]o promulgate and enforce ordinances governing the conduct of members and nonmembers of the Hoopa Valley Indian Tribe”). Cf. Moore v. Nelson, 270 F.3d 789, 792 (9th Cir. 2001) (“Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.”) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978)). Moreover, the Hoopa Valley Tribe retains inherent authority to exclude persons from Hoopa lands. We agree with the foundational Indian law decisions that roundly affirm the authority of tribal governments to exclude individuals from tribal lands. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 176 (1982) (Stevens, J., dissenting) (quoting Maxey v. Wright, 54 S.W. 807, 809 (Indian Terr. 1900)); Cf. Lopez v. Chehalis Tribe, 4 NICS App. 8, 15 (Chehalis Tribal Court of Appeals 1995) (“[W]e are equally cognizant of the necessity of preserving the Tribe’s sovereign powers, not the least important of which is the Tribe’s power to exclude.”); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983) (“A tribe’s power to exclude nonmembers entirely or to condition their presence on the reservation is equally well established.”). Other tribes have imposed exclusion on tribal members for violations of tribal law, most notably for repeat drug offenses. See Mary Swift, Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions, 86 Wash. L. Rev. 941, 943-44 (2011) (“In the past two decades, tribes have begun using banishment again to combat drug abuse and crime ravaging tribal communities. Until recently, tribes could only imprison individuals for up to one year, so often banishment has been used as a last resort against repeat offenders.”) (footnotes omitted). See also Bullcoming v. Cheyenne and Arapaho Tribes, 9 Okla. Trib. 528 (Cheyenne and Arapaho Tribes Supreme Court 2006) (“The tribal embezzlement statute authorizes banishment from tribal territory and association for up to ten years if the value of the embezzled property exceeds $1,000….”); Tulalip Tribal Code, Title 2, Chapter 2.40 (“Exclusion”). In any event, Hoopa law does not divest the Tribal Court of jurisdiction to enforce the Exclusion Ordinance.
We reject Jones’s contention that Jones’s 2012 conviction does not meet the elements required to comply with the Exclusion Ordinance. Any person may be excluded from the Hoopa reservation for “[r]epeated commission of a crime” under state, federal, or tribal law. 5 HVTC § 1(1). Jones argues that the language of the Ordinance (“a crime”) implies that his convictions must therefore be of the same crime. We will not engage in such a cramped, formalistic reading of the statute, which on its face is sufficiently clear. The Tribal Council’s statement of purpose in enacting Ordinance No. 2-86 – “enforcing laws to protect the territory and people within the jurisdiction of the Hoopa Valley Tribe” – would be severely undercut if we judicially limited the ordinance in the manner Jones suggests. Moreover, we find the argument disingenuous. Jones has pled guilty to three separate and extremely similar drug-related felonies. We hold that the exclusion ordinance does not require the repeat commission of the exact same crime to impose the exclusion penalty, and that under the undisputed facts of this case, Mr. Jones is excludable under 5 HVTC § 1(1).
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3. Access to Fee Land
We remand to the trial court for limited fact finding to determine whether Jones currently owns a property interest in on-reservation fee lands, when he acquired the property interest (if any), and whether the exclusion constitutes an unconstitutional taking of that property interest (if any). We hold, and therefore instruct the trial court, that if Jones is found to have acquired a property interest in fee lands after the issuance of the exclusion order, then it was for the purpose of attempting to undermine the enforcement of the exclusion order; therefore, no unconstitutional taking shall be found to have occurred in that circumstance. Assuming it is necessary, we instruct the trial court to determine in the first instance whether Jones’s jurisdictional claim is affected by the decisions in Bugenig v. Hoopa Valley Tribe, 5 NICS App. 37 (Hoopa Valley Tribal Ct. App. 1998) and Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), cert. denied, 535 U.S. 927 (2002).
We disagree with Jones that the Exclusion Ordinance is unconstitutionally vague, though we find the question to be far from obvious. “A law is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability; it violates the first essential of due process of law and is void for vagueness.” Burns Paiute Indian Tribe v. Dick, 3 NICS App. 281, 284 (Burns Paiute Tribal Ct. App. 1994). See also Dodge v. Hoopa Valley Gaming Commission, 7 NICS App. 51, 60 (Hoopa Valley Tribal Ct. App. 2005) (holding that a tribal ordinance offering three different procedures to challenge a gaming license revocation action violated the due process rights of a gaming employee).
Appeal of Order of Exclusion, at 7.
There is some force to this argument, but not enough to persuade us that the Hoopa exclusion ordinance is unconstitutionally vague. In Burns Paiute Indian Tribe v. Dick, the Burns Paiute Tribal Court of Appeals held that a tribal exclusion ordinance that subjected persons to
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exclusion for “the violation or any tribal law or ordinance” or “the violation of any federal or state law” was void. Dick, 7 NICS App. at 282.1 The court noted that “[u]nder its provisions a [person] could be excluded for committing a parking violation on the reservation or having committed an infraction in Florida.” Id. at 284. There is relatively little difference between the Hoopa exclusion ordinance and the Burns Paiute ordinance, at least in relation to the provisions relating to violations of tribal, state, or federal law. That said, the Burns Paiute Tribal Court of Appeals’ analysis belied its own test, which was that a person of common intelligence must guess at its meaning. The Burns Paiute statute, much like the Hoopa statute, was clear in that the violation of a tribal, state, or federal law justified exclusion. While it is possible, one supposes, that one could be excluded under the Hoopa ordinance for crimes as disparate as those listed by Jones in his brief, a person of common intelligence could easily discern that possibility. That is all that is required by a statute challenged for vagueness.
5. Lawfulness of Resolution No. 09-180
Because we hold that the trial court was authorized to exclude Jones under 5 HVTC § 1(1) for the “repeated commission of a crime,” we have no need to interpret or pass on the lawfulness of Resolution No. 09-180 under the Legislative Procedures Act, 6 HVTC § 6.1 et seq.2
6. Denial of Jury Trial and Exclusion of Character Evidence
Similarly, the trial court’s decision to exclude Mr. Jones’s character evidence is also a discretionary ruling. See 2 HVTC § 2.5.01 (providing that “evidence which is not relevant is not admissible”). The central issue in this case is whether or not Mr. Jones was excludable under the
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ordinance because he had “repeated commission of a crime.” Jones’s good character has no direct relevance to these grounds for exclusion.
7. Selective Prosecution or Enforcement
We reject Jones’s claim that the enforcement order constitutes selective prosecution or selective enforcement in violation of tribal law. Other than alleging without proof that others on the Reservation have committed offenses that may justify exclusion, Jones has made no factual representations suggesting that the Tribal Council “deliberate[ly] or purposeful[ly] discriminat[ed against him] on an unjustifiable standard such as race, religion, or other arbitrary classification.” Davisson v. Colville Confederated Tribes, 10 Am. Tribal Law 403, 409 (Colville Tribal Court of Appeals 2012). See also Nelson v. Yurok Tribe, 5 NICS App. 119, 128 (Yurok Tribal Court of Appeals 1999) (“The only evidence on this point is Appellant’s repeated statements at his various court appearances that he is not the only one who violates the tribe’s fishing ordinances. Even if this is true, a claim of selective enforcement requires far more than a showing that others break the law and do not get caught. There was neither selective enforcement nor a substantive due process violation in this case.”).
SUPPLEMENTAL OPINION (December 9, 2013)
We remanded this set of issues to the trial court with the following instructions:
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. . . for limited fact finding to determine whether Jones currently owns a property interest in on-reservation fee lands, when he acquired the property interest (if any), and whether the exclusion constitutes an unconstitutional taking of that property interest (if any). We hold, and therefore instruct the trial court, that if Jones is found to have acquired a property interest in fee lands after the issuance of the exclusion order, then it was for the purpose of attempting to undermine the enforcement of the exclusion order; therefore, no unconstitutional taking shall be found to have occurred in that circumstance. Assuming it is necessary, we instruct the trial court to determine in the first instance whether Jones’s jurisdictional claim is affected by the decisions in Bugenig v. Hoopa Valley Tribe, 5 NICS App. 37 (Hoopa Valley Tribal Ct. App. 1998) and Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), cert. denied, 535 U.S. 927 (2002).
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In this order, the court found that defendant acquired his interest in the property in question after the issuance of the court’s original October 22, 2012 Order of Exclusion, and that Appellant’s jurisdictional challenge had already been addressed and dismissed by the Court of Appeals. Accordingly, the trial court denied Appellant’s motion to dismiss and declared that the October 22, 2012 Exclusion Order would be enforced immediately. On September 23, 2013, Appellant filed a notice of appeal of the trial court’s September 6, 2013 order. The notice of appeal argues that the trial court erred because (1) the United States Supreme Court has held tribes do not have jurisdiction over fee land; (2) the Court of Appeals’ prior opinion did not address Appellant’s claim that the 1983 Referendum precludes Tribal Court jurisdiction in this matter; and (3) in failing to hold a hearing on Appellant’s motion to dismiss, the trial court denied Appellant due process. On October 1, 2013, the Tribe filed a motion to dismiss, arguing that while Appellant’s appeal would have been timely under the twenty day filing requirement in the Tribe’s rules of appellate procedure, the five day filing deadline set forth in the Tribe’s Exclusion Ordinance applies here.
Our analysis necessarily begins with our Opinion of July 3, 2013. Therein, we remanded to the trial court for a “limited fact-finding,” and if necessary “to determine in the first instance whether Jones’s jurisdictional claim is affected by the decisions in Bugenig v. Hoopa Valley Tribe, 5 NICS App. 37 (Hoopa Valley Tribal Ct. App. 1998) and Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), cert. denied, 535 U.S. 927 (2002).” Our Opinion announced the rule of law and the outcome if the trial court found that Jones had acquired his property interest after the issuance of the original October 22, 2012 Order of Exclusion. As opposed to a typical remand requiring further proceedings, nothing in our July 3 remand required the trial court to conduct further proceedings or issue a new order. Our opinion and remand required only that the trial court issue findings of fact, and if necessary conclusions of law in regards to a single issue. Despite the trial court’s use of the title “Order of Exclusion” in both of the documents it issued following the remand, neither of these documents constitute a new order of exclusion. The trial court’s August 2, 2013 “Order of Exclusion” is simply a scheduling order that also includes clarification regarding the conditions upon which the original Order of Exclusion would be enforced during the pendency of the remand. The trial court’s September 6, 2013 “Order of Exclusion” includes the findings of fact requested by this Court, the trial court’s conclusion that defendant’s motion to dismiss on jurisdictional grounds should be denied because the jurisdictional issue had already been determined by the Court of Appeals, and a lifting of the conditions the trial court had previously imposed on the Order of Exclusion. Thus, in all regards, the trial court’s September 6 2013 “Order” relates back to its original October 22, 2013 Order of Exclusion and this Court’s July 3, 2013 Opinion and remand. Given these particular circumstances,1 there was no need for the Appellant to file a new notice of appeal.2 Therefore, the Tribe’s Motion to Dismiss the appeal as untimely is denied.
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Having determined that a new notice of appeal was unnecessary, we will treat Appellant’s September 23, 2013 “Notice of Appeal” as a supplement to his original notice of appeal assigning additional claims of error. We now turn to those claims.
Our July 3, 2013 Opinion did not specify any process the trial court was to follow on remand, and our Opinion certainly did not require the trial court to conduct any additional hearings. We merely directed the trial court to conduct additional fact-finding. It was within the sound discretion of the trial court to decide whether to make those findings of fact based on the original record or to allow the parties to submit additional evidence and argument. As described above, the trial court granted the parties the opportunity to present additional evidence and written argument. No further process was due to either party. Appellant’s claim that the trial court violated his due process rights by issuing a final order without providing an opportunity for oral argument on his motion to dismiss is without merit. As discussed in detail above, we consider the trial court’s September 6, 2013 filing to be the merely the entry of supplemental findings of fact, not a new order of exclusion, in response to this Court’s limited remand. While we directed the trial court to rule in the first instance, if necessary, whether its supplemental findings and the Bugenig decisions affected the jurisdictional analysis, because this Court never relinquished jurisdiction over these matters,3 the trial court had no authority to grant Appellant’s motion to dismiss. Given the limited and specific terms of the remand, Appellant’s motion to dismiss was simply not a proper motion. Even assuming for the sake of argument that the trial court had authority to dismiss the action and that Appellant’s motion to dismiss was proper, the trial court was under no obligation to grant Appellant the opportunity to present oral argument on the motion. HVTC 2.3.18 requires only that motions be in writing and does not require oral argument on a motion. HVTC 2.4.05 provides that “hearings on motions are not automatic.” HVTC 2.4.06 provides that “unless requested by either party” a hearing on a motion “will not be held.” Appellant’s motion did not include a request for a hearing. Thus, the trial court’s decision to not grant a hearing on the motion was not only within its discretion, it was compelled by the Tribe’s rules of civil procedure. Appellant has in no way been deprived of due process.
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acquired his real property interest after the Order of Exclusion had been issued. Regardless of whether Appellant has abandoned the claim, the trial court’s finding invokes and effectuates this Court’s prior ruling that if Appellant were “found to have acquired a property interest in fee lands after the issuance of the exclusion order, then it was for the purpose of attempting to undermine the enforcement of the exclusion order; therefore, no unconstitutional taking shall be found to have occurred in that circumstance.”4
In regards to Appellant’s second jurisdictional challenge, in retrospect, this Court gave undue credence to that challenge in our original opinion by focusing on the ownership of the parcel in question and instructing the Tribal Court to determine, if necessary, whether the Bugenig decisions, supra, affected the jurisdictional claim. An exclusion order is simply not a property or land use regulation – it is an order directed to the conduct of a person. An exclusion order is therefore best viewed as a form of civil restraining or protective order, not an order affecting the status or use of any particular parcel of land or right of way. Thus, the Bugenig decisions, as well as any federal case law restricting tribal jurisdiction over privately owned fee lands and rights of way cited by Appellant, are irrelevant. Appellant offers no argument that the Tribal Court lacks civil jurisdiction to issue an order regulating the conduct of a person who has been deemed to pose a threat to the health, welfare and safety of the Tribe and its members. Because the Order of Exclusion in no way asserts Tribal regulatory jurisdiction over any parcel of land or right of way, Appellant’s second jurisdictional challenge must fail.
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Conclusion
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.
The court noted that a separate provision of the Burns Paiute exclusion ordinance allowed for exclusion in the event a person engaged in “any other act that harms the health, welfare, safety, morals, image, cultural traditions, or spirit of the Burns Paiute Tribe.” See Dick, 7 NICS App. at 285. Hoopa’s exclusion ordinance has no similar provision.
The Tribe is correct that if we were to treat Appellant’s filing as a new notice of appeal, it would be untimely and we would therefore lack jurisdiction and be required to dismiss it. Because we do not treat the filing as a new notice of appeal, there is no requirement that this Court provide the parties an opportunity to present additional briefs or oral argument. Having reviewed the documents and pleadings that have been filed with the trial court and this Court subsequent to the issuance of our July 3, 2013 Opinion, we have determined, as provided at HVTC 2.6.20(a)(2), that the facts and legal arguments are adequately presented in the record and the briefs that have been filed to date, and therefore our decisional process would not be significantly aided by additional oral argument. See also Dodge v. Hoopa Valley Gaming Commission, 7 NICS App. 51, 52, n. 3 (Hoopa Valley Tribal Ct. App. 2005) (Court of Appeals has discretion to determine whether it will hear oral argument).
As noted in footnote 2, supra, if we had relinquished jurisdiction, Appellant’s September 23, 2013 notice of appeal would have been dismissed as untimely, and Appellant would be without any forum to review the claims raised therein.