1 NICS App. 106, Bowen v. Upper Skagit Tribe (January 1989)
IN THE UPPER SKAGIT TRIBAL COURT OF APPEALS
UPPER SKAGIT INDIAN RESERVATION
SEDRO WOOLLEY, WASHINGTON
John C. Bowen v. Upper Skagit Indian Tribe
No. UPP-Cr-2/89-009 (Apri124, 1990)
SUMMARY
The trial court granted a pre-trial motion to suppress statements the defendant-appellant made before being advised of the nature of the charges. The Court of Appeals held that the statements may be used at trial to impeach testimony inconsistent with the pre-trial statements, and while the defendant was not advised of his rights in verbatim with the tribal code, he had been fairly informed of such rights, including the right to remain silent.
The Court of Appeals reasoned that the exclusionary rule was formulated by the non-Indian community and does not take into account the common knowledge, ancestral and cultural background, and close-knit nature of the tribal community. Certain facts regarding fishing are so well known within the community that they are within judicial notice of the court, and for defendant to state he did not know he was being arrested for fishing in closed waters customarily closed would fail to credit him with average intelligence.
While the Court of Appeals held that the defendant's conduct fell within the ordinance defining "fishing," it advised the tribe to revise the ordinance to speak plainly in defining prohibited conduct. The Court rejected the defendant's claims and held that a helper is fully responsible for participating in Fisheries Code violations, and that joining with another for protection against those hostile to tribal members cannot justify fishing in closed waters.
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Joseph D. Bowen, Mount Vernon, Washington for the Appellant. Deborah Wagner, Prosecuting Attorney, of the Northwest Intertribal Court System, Edmonds, Washington for the Respondent. |
1 NICS App. 106, Bowen v. Upper Skagit Tribe (January 1989) p. 107
OPINION AND ORDER
IRVIN, Chief Justice:
This case presents a number of technical legal issues on appeal which have been much briefed and well-argued by counsel representing both the appellant and respondent. The irrefutable facts of the case are that the appellant John Bowen was apprehended by Upper Skagit tribal law enforcement officers on the morning of January 20, 1989 at area 5, an Upper Skagit Usual and Accustomed fishing ground which was closed, and is usually closed to fishing for conservation purposes.
I.
WERE THE ADMISSIONS BY THE DEFENDANT WHICH WERE THE SUBJECT OF A PRETRIAL SUPPRESSION ORDER PROPERLY ADMITTED AT TRIAL WHEN THE DEFENDANT TESTIFIES AND CONTRADICTED THOSE EARLIER ADMISSIONS?
On July 5, 1989 Judge Mary Pearson ruled on the defendant's pre-trial Motion to Suppress that all statements made by the defendant prior to his being advised of his rights under section 31 of the Upper Skagit Fishing Ordinance were to be excluded at trial. Section 31 reads as follows:
Notification of Rights. Immediately upon arrest an alleged violator shall be advised of the following:
a. That he or she has the right to remain silent;
b. That anything he or she says may be used against him or her in court.
c. That he or she has a right to be represented by an attorney or spokesperson at his or her own expense.
d. The charges against him or her. If the arrest is made pursuant to a warrant, the accused shall be given a copy of the warrant at the time of the arrest or as soon thereafter as possible. Failure to advise the arrested person of his rights shall not invalidate the arrest nor be cause for dismissal of the charges, but the Court may, in its discretion, rule inadmissible as evidence any statements made by the arrested person under questioning by police before being advised of his or her rights.
Nothing in this section shall bar the filing of additional complaints arising out of conduct for which the person was arrested.
1 NICS App. 106, Bowen v. Upper Skagit Tribe (January 1989) p. 108
The Upper Skagit Rules of Criminal Procedure also contain sections detailing the rights of which the accused must be notified upon arrest. Section 4.130 of the Upper Skagit Rules of Criminal Procedure states as follows:
Upon arrest the accused shall be advised of the following:
(1) That the suspect has the right to remain silent.
(2) That any statements made by the accused may be used against the accused in Court.
(3) That the accused has the right to obtain counsel at the accused's own expense.
(4) The nature of the complaint against the accused.
If arrested pursuant to a warrant, the accused shall receive a copy of the warrant at the time of the arrest or as soon as is possible. Failure to advise the suspect of his rights shall not invalidate the arrest, but may, in the Court's discretion, cause any statement made by the suspect under questions by police to be inadmissible as evidence against him. Nothing in this section shall bar the filing of additional complaints arising out of conduct for which the accused was arrested.
At the time of his arrest the defendant was told:
"You have the right to remain silent. Anything you say can be used in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements ... Do you understand each of these rights that I have explained to you?" Upper Skagit Pre-trial Hearing Transcript, July 5, 1989, p.21.
and was cited for Fishing in a Closed Area according to the Upper Skagit Fisheries Ordinance. It is recorded that he refused to sign the citation. He was not told at that time, prior to the statements being made and the citation being issued, of the nature of the formal charge against him. His citation indicated the nature of the charge against him as being Fishing in a Closed Area and gave a place and time for his arraignment.
At trial the defendant testified, offering statements contrary to those excluded by the Suppression Order. The Tribe moved to admit the suppressed evidence for the purpose of impeachment. Judge Emma Dulik ruled the statements admissible and found the defendant guilty of Fishing in a Closed
1 NICS App. 106, Bowen v. Upper Skagit Tribe (January 1989) p. 109
Area. On appeal the appellant argues that the statements were inadmissible for any purpose.
Both parties have argued exhaustively the admissibility or inadmissibility of the defendant's statements. Many analogies have been drawn from State and Federal case law.
It is not the desire of this Court to create a rule of evidence by precedent in ruling on the admissibility, for impeachment purposes, of the suppressed statements by the defendant. The fundamental concern of this Court is that parties before it receive a fair hearing and have fair notice of matters concerning them and that justice is done. In this instance the defendant had been advised of his rights. The officers, in this instance, used the format used by the State of Washington. The format for the State of Washington differs substantively from the Upper Skagit requirements in that it advises the accused he has the right to assigned counsel and it does not provide for the accused being advised of the charge against him at the time of the arrest.
Although the officers did not adhere to the strict letter of the tribal ordinance, the defendant was fairly advised and put on notice that the statements he made could be used against him and that he had the choice to remain silent. Further, in advising the defendant that he had a right to appointed counsel the Upper Skagit law enforcement provided a right to the defendant beyond the standard of the Upper Skagit Fishing Ordinance and the Rules of Criminal Procedure. Had the defendant requested court-appointed counsel at the time of the arrest, whether he had the right of appointed counsel as advised by the Upper Skagit law enforcement would have been in issue. However, he did not and the right was not put at issue.
The parties have submitted Harris v. New York 401 U.S. 222 (1970) and Walder v. U.S. 347 U.S. 62 (1953) as instructive on the issue of whether the defendant's statements, due to the failure of the officers to advise the defendant of the nature of the charge against him at the time of the arrest, should be excluded or all purposes, including impeachment purposes. The exclusionary rule was formulated to proscribe certain police conduct and to safeguard the integrity of the adversary system by defining the proper scope of governmental power over the citizen and by the government observing its own laws and the charter of its own existence. Harris v. New York 401 U.S. 222 (1970). However, the rule was formulated in the non-Indian community and therefore did not take into accord the common knowledge within the tribal community. Within the tribal community tribal members have centuries' old traditions relating to fishing and many practices are common knowledge within the community. The close-knit nature of the Tribe and common ancestral and cultural background distinguishes the tribal community from the non-Indian community in circumstances such as we have here. To say that the defendant didn't know he was being arrested for Fishing in a Closed Area when confronted with the Tribal Fisheries Patrol in the very early hours of the morning in a area customarily closed to tribal fishing while carrying a sack with freshly caught fish, or with a person carrying freshly caught fish, depending upon which witnesses one
1 NICS App. 106, Bowen v. Upper Skagit Tribe (January 1989) p. 110
chooses to believe, would require failing to credit the defendant with average intelligence. Certain facts are so well-known within the tribal community, particularly regarding fishing, that it would be within the purview of this Court to take judicial notice of them.
At the core of the effectiveness of the tribal court is the fairness of the judgments it renders and the respect afforded by he tribal community to these judgments and the court. It serves no just purpose for the tribal community to allow a violator to be acquitted for a minor technical error which did not effectively alter notice to the defendant of rights which needed to be communicated to him. Fairness and justice do not dictate that, under the circumstances, a failure of the tribal police to say the "magic words" should make the defendant's statements inadmissible in a trial before a judge where the defendant chooses to take the stand and contradict those earlier statements. The defendant cannot, in those circumstances, use the law as a shield to protect him from impeachment.
It should be noted that from the record of the proceeding the facts would have sustained a conviction even without the defendant's inculpating statements.
II.
DOES THE TRIBAL CODE DEFINITION OF "FISHING" GIVE THE DEFENDANT FAIR NOTICE OF WHAT CONDUCT IS PROHIBITED UNDER THE FISHERIES MANAGEMENT CODE?
The definition of "fishing" under the Tribal Fisheries Code is as follows:
... any activity reasonably calculated to proximately cause, within the legal definition of that term, the capture of fish.
It is argued by the appellant that the definition of "fishing" does not give the defendant proper notice of the nature of the conduct prohibited by the Tribal Fisheries Code. While this Court agrees that the definition of "fishing" is convoluted, the defendant's conduct was within the "hard core" of the conduct prohibited by the statute, and was in no way peripheral to the activity of catching fish. Here the defendant was at the location of a closed fishing area and assisted in the withdrawal and transport of fish from that area.
It would be well-advised for the Upper Skagit Tribe to revise its statutory definition of "fishing" so that it speaks plainly in defining the prohibited conduct instead of incorporating more obscure legal terminology.
1 NICS App. 106, Bowen v. Upper Skagit Tribe (January 1989) p. 111
III.
WAS THE DEFENDANT A "HELPER"? WHAT ABOUT THE TRIBAL AXIOM, USED FOR PROTECTION, OF "WHERE- YOU-GO-I-GO" ON THE RIVER?
It was argued that the defendant was not fishing but was merely a "helper" and therefore should not bear full responsibility for a fishing violation. Sherman Williams, who initiated the illegal conduct admitted guilt for the violation and has been sentenced for Fishing in a Closed Area. The designation of someone as a "helper" for fishing purposes is subject to regulation by the Tribal Fisheries Code. If a Tribe chooses to authorize "helpers" under its fisheries, who qualifies to act as a "helper" is defined by the tribal fisheries code. Further, according to that authorization the Tribe issues a "helper's permit" to the authorized person. A person does not ex post facto become a "helper" but is authorized to be such under a legal fishery prior to engaging in the authorized conduct.
Finally, the defendant argues that he did not initiate the illegal fishing activity but was a victim of circumstances and for adhering to the tribal maxim for protection on the river of "where-you-go-I-go." According to the defendant's testimony he originally had his boat ported downstream and was intending to fish there. When he got to his boat it had been sunk and his nets cut. His vehicle would not start so, as a last resort, he hitched a ride upriver until he saw Williams' truck parked. He thought he could get a ride from Williams. He didn't know that Sherman Williams was illegally fishing. He stayed with Williams, even though Williams was illegally fishing, to help protect himself from the dangers of being an easy target for those who are hostile to tribal people; or, as his counsel put it, he followed the tribal maxim of "where-you-go-I-go" for his protection. This is offered as a justification for his actions.
Whether the defendant should have been able to surmise that he was illegally fishing from the early morning hour and the location of his truck near what is commonly a closed area is a question left unanswered. However, he did assist Sherman Williams in withdrawing fish and carrying them from a closed area. While it is understood that tribal members are subjected to danger by others on the river and band together for their protection, it does not justify participation in illegal fishing. It is apparent from trial proceedings that the fact that the defendant did not go to the river initially with any intention of illegally fishing and may have been caught in a circumstantial bind was considered and given some weight in the sentence imposed.
For these reasons the judgment is affirmed.