Lopez v. Chehalis Tribe, (1995)

• Decision Date: 19 September 1995
• Docket Number: CHE-EX-1/95-008
• Citation: Lopez v. Chehalis Tribe (Chehalis Tribal Ct. of App. 1995)
• Parties: RAY LOPEZ, APPELLANT v. CHEHALIS TRIBE, RESPONDENT
• Court: Chehalis Tribal Court of Appeals

RAY LOPEZ, APPELLANT v. CHEHALIS TRIBE, RESPONDENT

No. CHE-EX-1/95-008

Chehalis Tribal Court of Appeals Chehalis Indian Reservation Oakville, Washington

September 19, 1995

Appearances: Ray Lopez, Appellant; James Ascher, attorney for Appellant; Harold Chesnin, attorney for Respondent Chehalis Tribe.

Before: Elbridge Coochise, Chief Justice; Dennis L. Nelson Justice; Mary T. Wynne, Justice.

Appeal from trial court order of exclusion.Although statute of limitations would have barred Tribe from prosecuting Appellant for alleged crimes underlying exclusion proceedings, it is not a rule of evidence and does not affect the admissibility of evidence with regard to an exclusion proceeding.Finding no error in trial court's assessment of witness testimony or its failure to exclude, sua sponte certain witnesses, and finding that the Tribe is not collaterally estopped from pursuing this matter, we affirm.

SUMMARY

This matter came before the Chehalis Tribal Court of Appeals for hearing on July 24, 1995, pursuant to Appellant's notice of appeal filed on April 11, 1995.Pursuant to the Chehalis Appellate Rules, § 5.05.020, Appellant appeals from the April 5, 1995 Order denying his appeal of a March 20, 1995 Exclusion Order.

I.BACKGROUND

On January 22, 1995Respondent/Plaintiff Chehalis Indian Tribe filed a Petition for Exclusion against Appellant/DefendantRay Lopez.The petition alleged that Appellant, who is not a member of the Chehalis Indian Tribe, should be excluded from the Chehalis reservation pursuant to the Chehalis Code of Laws, § 8.03.010(governing exclusion) for drug-related offenses (§ 4.09.040), telephone abuse (§ 4.05.150), and intimidating (§ 4.06.140).^[1]

An exclusion hearing was scheduled for February 6, 1995.Upon Appellant's motion for continuance, the hearing was continued to and held on March 6, 1995.At the hearing, the Chehalis Tribal court found that although Appellant is married to a Tribal member, he himself is not a member of the Chehalis Indian Tribe.

Based upon the testimony of several witnesses, the trial court entered an Order of Exclusion against Appellant on grounds that he violated Chehalis Tribal Code, §§ 8.03.010 (a) and (b) by selling drugs and assisting others in selling drugs to Tribal members on the reservation.The trial court further found that exclusion of Mr. Lopez was necessary to protect the health, safety or welfare of the Chehalis Indian community.

Appellant filed his notice of appeal from the March 6, 1995 decision on April 3, 1995, citing as the basis of his appeal insufficient evidence and witness bias.On April 5, 1995, Appellant's attorney filed a motion to stay the exclusion order.This Court, by order dated April 5, 1995 and filed on April 6, 1995, denied Appellant's appeal for failure to meet certain requirements of Chehalis AppellateRules, §§ 5.04.030 and 5.05.010.

Also on April 6, 1995, Appellant's attorney filed a perfected appeal.On April 7, 1995, this Court granted Appellant's motion to stay the exclusion order until April 11, 1995, to allow Appellant time to file a written request that the full three-judge panel reconsider the April 6, 1995 denial.Appellant filed a second notice of appeal on April 11, 1995.This Court accepted the appeal on April 20, 1995, and vacated the April 5, 1995 Order Denying Appeal.

II.ISSUES ON APPEAL

The issues on appeal in this case are:

(1) Was Respondent's evidence, which consisted largely of witness testimony regarding Appellant's activities occurring over a year prior to the filing of the exclusion action, precluded by a lapsing of the statue of limitations?

(2) Was the Trial Court's conclusion that Appellant's 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 exclude, on its own initiative, the Tribe's witnesses from the courtroom during pre-trial motions constitute reversible error?

(4) Is the Tribe collaterally estopped from pursuing this matter because of a previous administrative finding that there was insufficient evidence to remove Appellant from tribal housing?

III.STANDARD OF REVIEW

Section 8.04.070(b) of the Chehalis Exclusion Code provides that the Court may exclude a non-tribal member from the reservation if, based on the evidence presented, the Court is "reasonably certain . . . . removal or exclusion is necessary to protect the health, safety, or welfare of the community."

Appellant argues that while this standard of proof clearly is lower than "beyond a reasonable doubt" as required in a criminal context, it requires a greater showing than the civil standard of "preponderance of the evidence".Respondent, on the other hand, contends that the "reasonably certain" standard for exclusion is a lower standard of proof than either the criminal or civil standard.

"Preponderance of the evidence" means such evidence which, when weighed against that opposed to it, has the more convincing force that something is more likely than not.Hopkins v. Price Waterhouse,737 F.Supp 1202(D.D.C.1990), aff'd. 920 F.2d 967.^[2]

This Court previously addressed this issue on March 17, 1994, in Chehalis Indian Tribe v. Charles, 3 NICS App. 292(Chehalis 1994).In Charles, also an exclusion case, this Court struggled with the "reasonable certainty" standard of proof, which is not defined in the Chehalis Law and Order Code.

Relying upon established principles of law, this Court found that "reasonable certainty" is "arguably a greater standard of proof than 'preponderance. . . .'"Id. at 293.^[3]We agree that "reasonable certainty" is a greater standard of proof than "preponderance."

Section 8.04.070 also requires, however, that the trial court's reasonable certainty be "based on the evidence presented."As we will discuss in the following sections, we find that the Tribe has met its burden regardless of the requisite degree of proof.

IV.DISCUSSION

Title 8 of the Chehalis Code of Laws permits the trial court to remove or exclude a non-member from tribal territory if, based on the evidence presented, the court is reasonably certain that two conditions have been met: (1)Defendant has committed an act or omission which falls within one or more grounds for exclusion (listed in § 8.03.010); and (2) Removal or exclusion is necessary to protect the health, safety, or welfare of the community.

Appellant alleges that the trial court was barred by the statute of limitations from hearing the evidence the Tribe offered to establish the first condition.Appellant further alleges that the Tribe failed to either address or establish the second condition -- that removal or exclusion was necessary to protect the health, safety, or welfare of the community.

In the discussion that follows, this Court finds that the evidence is sufficient to support that the trial court applied a two-tiered analysis and determined that the conditions for excluding Appellant had been met.

A.Statute of Limitations

The Chehalis Tribal Code provides for a one-year statute of limitations for criminal matters^[4] and a three-year statute of limitations for civil matters.^[5] The exclusion code does not contain a statute of limitations provision.

Appellant argues that since the trial court apparently based its order of exclusion on evidence that established violations of criminal law, the one-year criminal statute of limitations should apply.Most of the Tribe's witnesses, however, testified to alleged offenses which had occurred more than a year prior to filing of the Petition for Exclusion.Appellant contends that the trial court was barred from considering any testimony regarding alleged offenses falling outside the one-year statute of limitations.We disagree.

The criminal statute of limitations bars prosecution of an offense committed more than a year prior to filing of a complaint.Neither the criminal nor the civil statute of limitations are rules of evidence; therefore, they are not relevant as to the admissibility of Respondent's evidence.

The Tribe could not have properly brought a criminal complaint against Appellant for any offenses he allegedly committed more than a year prior to the filing of the complaint.If the Tribe were to file an untimely complaint, the trial court would have no jurisdiction to hear it.Nevertheless, the Exclusion Code expressly allows removal or exclusion of an individual who violated the Tribe's criminal or civil laws, "whether or not the Tribe has jurisdiction to prosecute the person for the act."Chehalis Code of Laws, § 8.03.010(a).Thus, even though the Tribe could not have prosecuted Appellant for many of the alleged offenses to which the Tribe's witnesses testified, the court was entitled to hear and weigh the testimony as evidence in the exclusion hearing.

Statute of limitations is an affirmative defense and its elements must be proved by the party asserting it.^[6]Appellant has failed to meet his burden.This Court will not on this basis reverse the trial court.

B.Witness testimony

Appellant alleges that, for various reasons, the testimony of Respondent Tribe's witnesses was insufficient to support the trial court's finding that removal of Appellant was necessary to protect the health, safety, or welfare of the community.

During trial, the Court heard testimony from seven witnesses for the Tribe and three witnesses for Appellant, including testimony from Appellant himself.The trial court's function is to determine the credibility and veracity of testimony.^[7]

Among the testimony heard and weighed by the trial court was testimony from one witness that he had purchased marijuana and cocaine from Appellant at Appellant's house, in varying amounts and...