Crow Tribe of Indians v. Bull Tail, (2000)

• Decision Date: 12 October 2000
• Docket Number: CRIM. APP. DKT. 00-479,00-480,00-481
• Citation: Crow Tribe of Indians v. Bull Tail (Crow Ct. of App. in And For the Crow Indian Reservation Crow Agency, Montana 2000)
• Parties: CROW TRIBE OF INDIANS, PLAINTIFF/APPELLEE, v. GERILYN BULL TAIL, DEFENDANT/APPELLANT.
• Court: Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana

CROW TRIBE OF INDIANS, PLAINTIFF/APPELLEE, v. GERILYN BULL TAIL, DEFENDANT/APPELLANT.

CRIM. APP. DKT. Nos. 00-479, 00-480, 00-481

Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency, Montana

October 12, 2000

OPINION

¶1Defendant/Appellant Gerilyn Bull Tail appealed her convictions by the Tribal Court(Stovall, Special Judge) on March 22, 2000, for violating Crow Tribal Code Section 8-5-572(possession of intoxicants), Section 8-5-517(giving intoxicating substances to a minor), and Section 8-5-556(criminal contempt for probation violation).Ms. Bull Tail was sentenced to a total of 20 days in jail, with credit for 9 days served and 1 day suspended, for the first two offenses.On the criminal contempt conviction, she was sentenced to 180 days, which was suspended subject to supervised probation and a substance abuse evaluation.

¶2 For the reasons stated below, we affirm the first two convictions, but reverse and vacate the conviction for criminal contempt.

A.Course of Appeal Proceedings

¶3 Mr. Bull Tail's notices of appeal were filed on March 24 2000.In response to a request by the Tribal public defenderthis court gave Ms. Bull Tail a 30-day extension of time for filing her brief or statement in support of her appeal, to June 13, 2000.As that deadline approached, the public defender moved for leave to withdraw the appeal, because, he stated, Ms. Bull Tail was not cooperating with him in preparing her appeal.Rather than dismissing at that time, this court issued an order on June 15, 2000 for Ms. Bull Tail to show cause why her appeal should not be dismissed.

¶4 On June 27, Ms. Bull Tail timely filed a written response, stating that she had been delayed in obtaining affidavits from two witnesses because they were incarcerated, and that there had been several recent deaths in her family.Ms. Bull Tail requested that court proceeding be delayed until after a funeral on June 29.

¶5 Because Ms. Bull Tail's response indicated that she was still interested in pursuing her appeal, and had made some effort to do so, the court allowed her appeal to proceed and extended the time for filing her brief or statement in support of her appeal until July 21.The court's order also advised Ms. Bull Tail that if she failed to cooperate with her counsel in order to file her brief by that time, her appeal would be subject to immediate dismissal.A copy of that order, like the order to show cause, was mailed to Ms. Bull Tail personally.

¶6 In the meantime, however, the person serving as Tribal public defender changed when the new Tribal administration took office.Thus, when the deadline for filing Ms. Bull Tail's appellate brief was missed again, the docket judge consulted with the new Tribal defender and the prosecutor before setting another briefing deadline.On August 3, with the public defender's concurrence, the court issued a revised scheduling order giving Ms. Bull Tail until August 25, 200 to file her appellate brief.

¶7 More than a month later, no brief or statement has been filed in support of Ms. Bull Tail's appeal, nor has the public defender or Ms. Bull Tail contacted this court to request a further extension.

B.Criminal Appeal Rights

¶8 Rather than simply dismissing this appeal, as we would in these same circumstances in a civil case, it is first necessary to review the scope of Ms. Bull Tail's criminal appeal rights under Tribal law and the Indian Civil Rights Act(the "ICRA").This is a question of first impression.

¶9 The protections granted to Tribal criminal defendants by the due process clause of the ICRA, 25 U.S.C. § 1302(8), are similar (although not necessarily identical) to those in the U.S. Constitution.SeeCrow Tribe v. Big Man, Crim. App.Docket No. 00-410, slip op. at pp. 5-8(Oct. 12, 2000), 2000 CROW 7, ¶¶ ____.Under federal criminal law, the Supreme Court has long held that "there is no constitutional right to an appeal."Abney v. United States,431 U.S. 651, 656(1977).Therefore, the ICRA does not directly grant a convicted criminal defendant the right to any appeal.

¶10 Although there is no inherent right to appeal a criminal conviction, it is also well-established that when a right to appeal is provided under the law of the prosecuting government, then "the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution."Evitts v. Lucey,469 U.S. 387, 393(1985)(Kentucky appeals court's dismissal for counsel's failure to file "statement of appeal" violated Fourteenth Amendment);see also, id. at 393-94(citing other Supreme Courtcases that recognized the rights of indigent appellants to effective assistance of counsel in one appeal, to waivers of appeal filing fees, and to free trial transcripts).

¶11 Thus, the Ninth Circuit has stated that when a Tribe decides to grant appeal rights, and its appeal procedures are Anglo-American in origin, then "federal constitutional standards are employed in determining whether the challenged procedure violates the [Indian Civil Rights]Act."Randall v. Yakima Nation Tribal Court,841 F.2d 897, 900(9th Cir.1988).In Randall, the Tribal appeals court dismissed a criminal appeal because the $60 filing fee was not paid within 10 days after entry of judgment.Ms. Randall had filed a motion with the Tribal court to waive the fee because she was no longer employed, but the Tribal court failed to act on it within the time allowed for perfecting the appeal.The Ninth Circuit held that the dismissal of Ms. Randall's appeal due to the neglect of the Tribal court violated her due process rights under the ICRA, as determined by the federal constitutional standards which guarantee indigent criminal defendants access to the appeal process without paying a filing fee.Randall,841 F.2d at 901-02.

¶12 Under Crow Tribal Code, "a defendant has the right to appeal to the Crow Court of Appeals . . . a final judgment of conviction."Rule 22(a)(1), Crow Rules of Criminal Procedure(Title 6, Crow Tribal Code).The Crow Rules of Appellate Procedure(Title 7 of the Crow Tribal Code) govern criminal as well as civil appeals.CrowR. App. P. 1;Crow R. CrimP. 22(f).

¶13 Under the Crow Rules of Appellate Procedure, as interpreted and applied by this court, there are none of the typical procedural barriers to pursuing an appeal that have been held to violate criminal appellants' due process rights in federal constitutional rights cases.First, there is no fee for filing an appeal.Second, we have not required criminal defendants to pay for a trial transcript, because this court has accepted the videotapes of the proceedings as the record on appeal.Third, as the present case indicates, this court does not dismiss appeals based on minor procedural defects, because of our "traditional concern for justice and fairness, and in the interest . . . of deciding important cases on their merits rather than on mere technicalities."Sage v. Lodge Grass School District,1986 CROW 1, ¶ 64.

¶14 It is the responsibility of the Appellant and her counsel to pursue an appeal.SeeCrowR. App. P. 8(a) and 10(appellant responsible for seeing that record on appeal is transmitted by clerk, and for filing brief in support of appeal within 20 days thereafter).Applying these rules in civil cases, this court has reversed the dismissal of an appeal for failure to timely file an opening brief, when the dismissal came without any warning.Lande v. Schwend,1999 CROW 1, ¶ 30.On the other hand, we have approved dismissal of a civil appeal by the docket judge when the appellant missed the initial briefing deadline established by scheduling order, missed an extended deadline, and failed to respond to an order to show cause why the appeal should not be dismissed.Id., ¶ 29.

¶15 In the present case, Ms. Bull Tail's brief was originally due on or about May 13, 2000.This court has granted no less than three extensions, and has twice put Ms. Bull Tail personally on notice about the importance of filing her brief.Despite these warnings, no brief or statement in support of her appeal has been filed.In these circumstances, and because of the difficulty in deciding a case on its merits when the appellant and her counsel have not even told this court what they are appealing, this court could properly exercise its inherent authority to dismiss this appeal without infringing on Ms. Bull Tail's rights to due process and equal protection under the ICRA.

¶16 In a criminal appeal such as this, there is one more consideration that must be addressed – the criminal appellant's right to appointed counsel under Tribal law.Under federal constitutional law, which does not apply here,^[1]the Supreme Court has held that the due process clause guarantees an indigent criminal defendant the right to effective assistance of appointed counsel in her first appeal.Evitts, supra,469 U.S. at 396.

¶17 This right of "effective assistance of counsel" means that the attorney appointed to represent the defendant on appeal must act as an "active advocate" and, at the very least, file a brief "referring to anything in the record that might arguably support the appeal."Anders v. California,386 U.S. 738, 744(1967).Then, after allowing the defendant an opportunity to raise any points he chooses, and after the appeals court has reviewed the proceedings, it may dismiss the appeal if it is "wholly frivolous."Id. at 744.However if the appeals court finds that there are "legal points arguable on their merits," the appointed counsel must argue the appeal.Id.This approach assures indigent defendants, "as nearly as is practicable," the same rights on appeal as defendants who can afford to hire their own attorney, and greatly assists the court in...