Bowen v. Upper Skagit Indian Tribe, (1990)
| Decision Date | 24 April 1990 |
| Docket Number | UPP-Cr-2/89-009 |
| Parties | JOHN C. BOWEN v. UPPER SKAGIT INDIAN TRIBE |
| Court | Upper Skagit Tribal Court of Appeals |
Appearances: Joseph D. Bowen, Mount Vernon, Washington for the Appellant. Deborah Wagner, Prosecuting Attorney, of the Northwest Intertribal Court System, Edmonds, Washington for the Respondent.
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.
FULL TEXT
Before: Rosemary Irvin, Chief Justice; Marguerite Bostrom, Associate Justice; and Hollis Chough, Associate 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.
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:
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 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...
To continue reading
Request your trial