Lummi Indian Nation v. Kinley, (1991)

• Court: Lummi Tribal Court of Appeals
• Writing for the Court: HOSTNIK, CHIEF JUSTICE.
• Decision Date: 24 July 1991
• Docket Number: 89-CRF-0 2385,2386
• Citation: Lummi Indian Nation v. Kinley (Lummi Tribal Ct. of App. 1991)
• Parties: LUMMI INDIAN NATION [*] v. RICK KINLEY AND CARL LANE

LUMMI INDIAN NATION ^[*] v. RICK KINLEY AND CARL LANE

Nos. 89-CRF-0 2385, 2386

Lummi Tribal Court of Appeals

July 24, 1991

Special tribal prosecutor Daniel A. Raas for the Lummi Indian Nation; attorneys Gail Smith and James J. Purcell for Rick Kinley and Carl Lane

Before: Chief Justice Charles R. Hostnik, Associate Justice Elizabeth Fry, and Associate Justice Rosemary J. Irvin.

HOSTNIK, CHIEF JUSTICE.

SUMMARY

On August 15, 1989, Lummi Indian Nation members Rick Kinley and Carl Lane were cited by tribal authorities for illegal fishing. They were charged with violating Lummi Business Council Resolution 89-108 (Count I), Lummi Fisheries Regulation No. 8958, ¶2 (Count II), and Lummi Fisheries Regulation No. 89-58, ¶5 (Count III). At trial, the judge dismissed Count I of the charges on the grounds that Resolution 89-108, which prohibited Lummi registered boats in the tribal fishery before August 19, 1989, had not been formally ratified by the full Lummi Business Council at the time the defendants were cited. Count II, which concerned the violation of a regulation stating all fisheries areas are closed unless specifically opened by the Lummi Nation, was dismissed on the grounds that the defendants had been fishing as Washington State citizens under a valid state commercial fishing license. Count III, which concerned a Lummi Fisheries regulation nearly identical to Business Council Resolution 89-108 (see Count I), was dismissed on the basis that the prosecution had submitted no evidence to prove a violation had occurred.

The Lummi Indian Nation appealed the trial court's dismissal of Count I of the charges. The defendants opposed the appeal on the grounds that it violated their right against double jeopardy. The Tribal Court of Appeals, Justice Irvin dissenting in part, ruled in favor of the defendants. It found first, that in the absence of language in the Lummi Tribal Code specifically granting the Nation the right to appeal in a criminal case, the appellate panel had no jurisdiction to hear this appeal. But even assuming that specific statutory authority for the appeal existed, the court found that once the defendants' had been tried and acquitted on Count III of the charges, double jeopardy barred their being retried on Count I. This was because the elements necessary to establish a violation under either count were identical under the facts of the case.

DECISION AND ORDER OF THE APPELLATE PANEL

I. BACKGROUND

On August 15, 1989, Carl Lane and Rick Kinley, both enrolled Lummi tribal members, were fishing in the usual and accustomed fishing ground of the Lummi Indian Nation when they were cited for illegal fishing by tribal authorities. The tribal fishery was closed on that date; however, Mr. Lane and Mr. Kinley had obtained state commercial fishing licenses, and were entitled to engage in the all-citizen fishery on the date and in the area at issue. Mr. Lane and Mr. Kinley were charged with violating Lummi Business Council Resolution 89-108 (Count I), and Paragraphs 2 and 5 of Lummi Fisheries Regulation No. 89-58 (Counts II and III, respectively).

Resolution No. 89-108 provides:

No Lummi registered gear shall fish before 8:00 a.m., August 19, 1989, except on days and at times when the Lummi Indian Tribe shall have opened the fishery.

Paragraph 2 of Regulation No. 89-58 provides:

All fisheries and areas are closed unless specifically opened.

Paragraph 5 of Regulation No. 89-58 provides:

No Lummi registered gear shall fish before August 18, except on days and at times when the Lummi Tribe shall have opened the fishery.

After extensive testimony, defendants moved to dismiss the charges at the conclusion of the prosecution's case. The trial judge determined that Resolution No. 89-108 was not in effect on the date at issue, and therefore dismissed Count I of the charges against each defendant. The charges based on Count III (violation of Lummi Fisheries Regulation No. 89-58, paragraph 5) were also dismissed on the basis that no evidence had been submitted by the prosecution to prove a violation of that section of the regulation. The trial court further ruled that the defendants would have to prove that they had been fishing under valid commercial fishing licenses in order to be exonerated on Count II (violation of Lummi Fisheries Regulation No. 89-58, paragraph 2).

After the defendants presented their evidence, the Tribal Court ruled that the defendants were fishing under valid State of Washington commercial fishing licenses and therefore had not violated paragraph 2 of Regulation No. 89-58. Defendants were therefore acquitted of all charges.

II. THE LUMMI NATION'S BASIS FOR APPEAL

From this decision, the Lummi Nation has appealed. The Nation's main objection to the trial court's decision relates to the basis upon which the trial judge determined that Regulation No. 89-108 was not in effect on the date in question. Extensive testimony was introduced during the prosecution's case to show that Regulation No. 89-108 had been handcarried to each of the Tribal Council members for signature prior to the date in question. This is commonly referred to as the "walk around" method. This method is used for resolutions passed without a formal meeting of the Lummi Business Council, but with a majority of Council members' signatures attached to a proposed resolution. The full Council, at a regular council meeting, subsequently ratified the resolution. In the case at hand, the date of ratification was after the date that the defendants were allegedly engaged in illegal fishing.

The trial court determined that the "walk around" method of enacting amendments to the criminal fishing code violated the defendants' rights of due process under the Lummi Constitution and under the Indian Civil Rights Act. The trial court held that, at the earliest, the resolution did not become effective until it was ratified, which was subsequent to the date of the alleged violation. The prosecution contends that the trial court did not have jurisdiction to review the method by which legislative enactments are adopted by the Lummi Indian Nation. However, before this court even reaches that issue, several preliminary issues need to be addressed.

III. DELAY IN APPELLATE PROCEEDINGS

The defendants have contended that the matter should be dismissed because the appeal hearing is being conducted more than forty-five days after the date the prosecution filed its Notice of Appeal. This is based upon Section 1.8.05 of the Lummi Tribal Code, which provides:

Within 45 days from the date of written notice of the appeal, the appellate court shall convene unless delay is warranted by good cause, to hear the case on appeal at such place as may be designated ...

There is no dispute that the Court of Appeals convened more than forty-five days from the date the Notice of Appeal was filed by the prosecution. However, the prosecution contends that good cause exists for the delay.

The prosecution has submitted several affidavits attesting to personnel problems experienced by the Lummi Nation within the Tribal Court administration. Those affidavits show that the two tribal job positions most responsible for the procedural aspects of the Lummi Tribal Court experienced substantial turnover during the summer and fall of 1990. In addition, both positions were vacant for a period during that time frame. Three separate individuals had been employed as the Court Clerk between August 1, 1990 and March 15, 1991.

The failure to conduct the appellate proceeding within the forty-five-day time period does not mandate dismissal. This court has previously ruled on this issue. The appropriate inquiry is to look at the record as a whole and engage in a balancing test. The factors to be taken into consideration are: (1) length of the delay, (2) prejudice to the defendants, and (3) whether the defendants were at fault in causing the delay. Lummi Indian Tribe v. Edwards, 16 Indian L. Rep. 6005, 6007 (1988).

In this case, the defendants have not alleged any prejudice other than the length of time which has elapsed. The defendants' concern is that witnesses' memories may fade with the increased passage of time. However, this factor is relevant only if an appeal is granted in which witnesses are required to testify--a matter which is not at issue in this appeal. Furthermore, even though the delay was not due to the fault of the defendants, the delay was also not due to the fault of the prosecution. Viewing the record as a whole, we hold that good cause exists for the delay which has occurred between the time the Notice of Appeal was filed by the Nation, and the time that appellate proceedings were commenced. Therefore, that delay is not a basis for dismissal of the appeal.

IV. DOUBLE JEOPARDY ANALYSIS

The defendants have vigorously opposed the appeal by the prosecution, contending that the prosecution's appeal violates their right against double jeopardy. The Defendants' right against double jeopardy stems from Article VIII of the Lummi Constitution. This Article provides, in part, as follows:

No member [of the Lummi Indian Nation] shall be denied any of the rights or guarantees enjoyed by non-Indian citizens under the Constitution of the United States ...

The Fifth Amendment to the United States Constitution provides, in part: "No person shallàbe subject for the same offense to be twice put in jeopardy of life or limbà"

The Indian Civil Rights Act provides, in part: "No Indian tribe ... shall ... subject any person for the same offense to be twice put in jeopardy." 25 U.S.C. § 1302(3). This provision of the Indian Civil Rights Act is expressly incorporated into the Lummi Constitution. See Constitution and By-Laws of the Lummi Tribe, Article VIII.

Two issues...