4 NICS App. 26, FOSTER v. CHEHALIS TRIBE (October 1995)
IN THE CHEHALIS TRIBAL COURT OF APPEALS
CHEHALIS INDIAN RESERVATION
OAKVILLE, WASHINGTON
Gerald Foster/Mary Newton, Appellants/Defendants
v.
Chehalis Tribe, Respondent/Plaintiff
No. CHE-EX-1/95-010, CHE-EX-2/95-010 (October 31, 1995)
SUMMARY
The Chehalis Indian Tribe excluded Appellants from the Chehalis Indian Reservation for violations of certain sections of the Tribe’s Code of Laws. The trial court found, based on the evidence presented at trial, that exclusion of Appellants was necessary to protect the health, safety, and welfare of the Chehalis community.
Appellants challenge the admissibility and reliability of the evidence upon which the trial court based its findings and conclusions. Appellants also argue that the trial court’s failure to advise pro se litigants of the right to testify on their own behalf constitutes reversible error.
Finding no reversible factual, procedural, or legal errors, we affirm.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Douglas W. Hutchinson, Justice; Rose E. Purser, Justice.
Appearances: Mary Newton, Appellant; James Ascher, Appellant’s attorney; Harold Chesnin, Respondent Chehalis Tribe’s Attorney.
Per Curiam:
This matter came before the Chehalis Tribal Court of Appeals for hearing on September 25, 1995, pursuant to Appellants’ notice of appeal filed on June 6, 1995. Pursuant to the Chehalis Appellate Rules, section 5.05.020, Appellants appeal the May 23, 1995, Order of Exclusion.
I. BACKGROUND
On January 22, 1995, Respondent/Plaintiff Chehalis Indian Tribe filed a Petition for Exclusion against Appellant/Defendant Gerald Foster. The petition alleged that Appellant, who is
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not a member of the Chehalis Indian Tribe, should be excluded pursuant to the Chehalis Code of Laws, § 8.03.010, governing exclusion, for violations of the Chehalis Code by Appellant and juvenile members of his household, which violations included possessing and receiving stolen property, telephone harassment, trespassing, curfew violations, burglary, and vandalism.1 Mary Newton was joined as an Appellant in February of 1995.
An exclusion hearing was scheduled for February 21, 1995. The matter was continued several times before the court heard the matter on May 17, 1995. Pursuant to the hearing, in an Order dated May 22, 1995, the Chehalis Tribal Court found, based on the evidence presented, that exclusion of Appellants was necessary to protect the health, safety, and welfare of the Chehalis community. Therefore, the Tribal Court ordered Appellants to leave the Chehalis Reservation within thirty days of the Order.
Appellants filed their Notice of Appeal on June 6, 1995. This Court accepted the appeal on June 8, 1995.
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II. ISSUES ON APPEAL
The issues on appeal in this case are:
(1) Were the Court’s findings of fact sufficiently supported by the evidence presented?
(2) Was the Trial Court's conclusion that Appellants’ removal or exclusion was necessary to protect the health, safety or welfare of the community sufficiently supported by the evidence presented?
(3) Does the Trial Court's failure to advise Appellants, who appeared pro se, of the right to testify on their own behalf constitute reversible error?
III. DISCUSSION
Appellants allege that the Tribal Court’s Findings of Fact were not proven by a preponderance of the evidence and, therefore, did not constitute sufficient “clear and convincing evidence” to warrant Appellants’ removal. Appellants also allege that the Tribal Court’s failure to advise Appellants of the right to testify on their own behalves deprived Appellants sufficient opportunity to defend themselves against the charges pending against them.
As a preliminary matter, we deal with Appellants’ objection to the language in the trial court’s order, which discusses burden of proof in terms of “preponderance” and “clear and convincing”. The standard of review in an exclusion case is whether the court is “reasonably certain” that exclusion of the parties is necessary to protect the health, safety, or welfare of the community. Appellants argue, and this Court agrees, that “reasonably certain” is a higher degree of proof than “preponderance”. See Lopez v. Chehalis Tribe, 4 NICS App. 8 (Chehalis 1995). Furthermore, the trial court’s reasonable certainty must be “based on the evidence presented.” Id. As we shall explain in the discussion that follows, this Court finds that the requisite burden of proof has been met. Therefore, the language of the trial court’s Order, inartful as it may be, does not in and of itself constitute reversible error.
A. Sufficiency of Evidence
By Order dated May 22 and filed on May 23, 1995, the trial court found that “[t]he actions of Respondents [were] proven by the preponderance of evidence to be true . . . ” and that the petitions for exclusion of Appellants were “supported by clear and convincing evidence . . . . ” Findings of Fact, Conclusions of Law and Order of Exclusion (Chehalis Tribal Court, May 23, 1995). Appellants challenge the sufficiency of the evidence upon which the trial court based its findings and conclusions.
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Appellants argue that § 8.04.070 of the Chehalis Exclusion Code requires the court to engage in a two-pronged analysis: First, the court must find, based on the evidence presented, that Appellants committed the acts with which they were charged; second, in light of evidence that Appellants committed such acts, the court must find that exclusion of Appellants is necessary to protect the health, safety, or welfare of the Chehalis community. Appellants contend that the Trial Court did not apply the two-tiered analysis.
Appellants challenge both the admissibility and the reliability of the evidence upon which the trial court based its findings that Appellants had “committed acts which fall within one or more grounds for exclusion . . . .” Findings of Fact, Conclusions of Law and Order of Exclusion (Chehalis Tribal Court, May 23, 1995). In particular, Appellants challenge the trial court’s reliance on witness testimony regarding Appellants’ multiple traffic offenses, “substantial traffic” to and from Appellants’ residence, Appellants’ alleged possession of drug paraphernalia, and Appellant Newton’s sale of marijuana to one of the witnesses. Appellants further argue that the trial court failed to consider whether the evidence was such that it warrants removal of Appellants from the Chehalis Reservation.
This Court finds that sufficient evidence existed upon which the trial court could have based its findings that Appellants committed the acts in question, any one of which was sufficient to support the trial court’s conclusion that Appellants must be removed from the Reservation.
The testimony of one witness in particular remains uncontroverted. That witness testified that she had purchased drugs from Appellants within the past two and a half years; Appellants did not dispute the testimony. Appellants’ sale of marijuana violates Tribal, state, and federal criminal laws, thereby subjecting Appellants to removal pursuant to § 8.03.010 (a) and (b) of the Exclusion Code.
Police Chief Ralph Wyman further testified that a search of the Appellants’ house pursuant to a search warrant resulted in the discovery of both drug paraphernalia and residue of marijuana. Possession of drugs and drug paraphernalia subjects Appellants to removal pursuant to § 8.03.010 (a) and (b).
Further testimony indicated that Appellant Foster had been charged with and convicted of receiving stolen property, an act warranting Appellants’ removal under § 8.03.010 (f). Chief Wyman testified that both Appellants had numerous traffic offenses between 1991 and 1995, which, pursuant to § 8.03.010 (j), also would support the trial court’s findings and conclusions regarding the necessity of Appellants’ removal.
Appellants challenge the trial court’s reliance on Officer Ronald J. Morken’s testimony concerning a May 27, 1995 undercover “sting operation” on the grounds that his testimony constitutes inadmissible hearsay. This challenge fails for two reasons. First, Appellants’ objection
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is untimely. The objection to Officer Morken’s testimony on hearsay grounds should have been raised at trial; it was not, and this Court will not address it at this late juncture. Second, notwithstanding the untimely nature of Appellants’ objection, the portions of Officer Morken’s testimony which are based on personal observations constitute sufficient evidence upon which the trial court could have based its findings and conclusion.
Officer Morken testified that on May 27, 1995, their informant entered Appellants’ house with money to buy drugs. Officer Morken observed that before the informant entered Appellants’ house Chief Wyman patted him down to ensure that he had no drugs on his person. Officer Morken then observed the informant enter the home. Officer Morken testified that when the informant returned from Appellants’ home, Chief Wyman patted him down again and found on his person two bags containing a substance later confirmed to be marijuana. Based on this evidence, the trial court could reasonably have inferred that Appellants sold marijuana to the informant in violation of Tribal criminal codes. Furthermore, based on that finding, the trial court could reasonably have concluded that exclusion of Appellants pursuant to § 8.03.010 (a) was necessary to protect the health, safety, and welfare of the Tribal community.
As we discussed at some length in Lopez, it is the province of the trial court, as trier of fact, to hear and weigh all evidence before it and to make strong reasonable inferences from that evidence. Emrich v. Connell, 41 Wn. App. 612, 705 P.2d 288 (1985); Harding v. Warren, 30 Wn. App. 848, 639 P.2d 750 (1982). In the instant case, as in Lopez, the trial court did, in fact, engage in the two-tiered analysis. As a result of the analysis, the trial court found that the evidence presented supported both the finding that Appellants had committed the acts with which they were charged and that removal or exclusion of Appellants "is necessary to protect the health, safety, or welfare of the community."
Therefore, this Court defers to the trial court’s findings of fact and defers to the trial court’s conclusion that, based on those facts, exclusion of Appellants was necessary to protect the health, safety or welfare of the Chehalis community.
B. Right to Testify
During the May 17, 1995 hearing at which Appellants appeared pro se, Appellants presented opening and closing arguments, as well as conducted direct and cross-examination of witnesses. Appellants contend that the trial court had an obligation to inform Appellants that they also had a right to be sworn in and to testify on their own behalf.
This Court finds that although Appellants did not actually take the stand to testify, they were not effectively denied the opportunity to present “testimony” and to defend themselves. The record reflects that the Trial Court advised Appellant Newton on several occasions that she would have the opportunity to testify. (May 17, 1995 Trial Transcript. at pp. 27, 36, 42.) Appellant Newton did not
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ask to be sworn in and did not avail herself of the opportunity to testify; nor did she call Appellant Foster as a witness. Therefore, although Appellants did not testify on their own behalf, this Court finds that Appellants had many opportunities to testify, and did so, during their opening and closing statements, as well as through cross-examination of witnesses.
IV. ORDER
Therefore, based on the foregoing, it is hereby ordered that the trial court's Order of Exclusion, dated May 22, 1995, is hereby affirmed.
Appellants, Gerald Foster and Mary Newton, shall remove themselves from the Chehalis Indian Reservation no later than November 30, 1995. Appellants may return to the Chehalis Indian Reservation only upon order of the Chehalis Tribal Court.
Chehalis Code of Laws, § 8.03.010 lists the various grounds for exclusion/removal of a non-member. Respondent brought this action against Appellants pursuant to the following subsections:
Any person subject to this title may be removed and excluded from the territorial jurisdiction of the Chehalis Tribe for any of the following reasons:
a) Committing an act which violates the criminal or civil laws of the Chehalis Tribe, whether or not the Tribe has jurisdiction to prosecute the person for the act.
b) Any act which violates the criminal laws of the State of Washington or of the United States of America, whether or not the person may be prosecuted by this State or United States.
. . . .
d) Failure to comply with any legal process, notice, subpoena, order, or other decree issued by the Chehalis Court of Justice, General Council, or Business Committee or any Tribal Administrative Procedure panel.
. . . .
f) Any act causing physical loss or damage to property not his own.
. . . .
j) Repeated violations of tribal, county, or state traffic regulations.
. . . .
p) Repeated harassment of members of the Chehalis Indian Tribe, Tribal Officials, Tribal Employee, or persons who are on contract with the Tribe.
. . . .
s) Repeated breaches of the peace including but not limited to those breaches of the peace committed while under the influence of alcohol or drugs.