Nooksack Tribe v. Cooper, (1981)

• Court: Nooksack Tribal Court of Appeals
• Writing for the Court: TURGEON, CHIEF JUDGE.
• Decision Date: 17 July 1981
• Citation: Nooksack Tribe v. Cooper (Nooksack Tribal Ct. of App. 1981)
• Docket Number: NOO-CrF-12/80-0001,NOO-CrF-12/80-0002,NOO-CrF-12/80-0003,NOO-CrF-12/80-0005,NOO-CrF-12/80-0006
• Parties: NOOKSACK TRIBE v. HARRY B. COOPER, ET AL.

NOOKSACK TRIBE v. HARRY B. COOPER, ET AL.

Nos. NOO-CrF-12/80-0001, NOO-CrF-12/80-0002, NOO-CrF-12/80-0003, NOO-CrF-12/80-0005, NOO-CrF-12/80-0006

Nooksack Tribal Court Of Appeals Nooksack Indian Reservation Deming, Washington

July 17, 1981

James Tweedie, Northwest Intertribal Court System, LaConner Washington, for the Plaintiff. Phillip A. Serka of Flynn Adelstein and Sharpe, Bellingham, Washington, for the Defendants.

Before: Nooksack Tribal Court, The Honorable M. Turgeon Presiding.

MEMORANDUM OPINION

TURGEON, CHIEF JUDGE.

SUMMARY

Several members of the Nooksack Tribe were charged with failure to pay a fish tax imposed by the Tribal Council on the commercial sale of fish. Following presentation of the Prosecution's case at trial, the Defendants moved the Court for a judgment of acquittal.

The Court granted the motion for judgment of acquittal on the grounds; (1) that the Prosecutor failed to prove where the Defendants caught the taxed fish, an element of the crime with which they were charged and (2) that the tribal fish tax was never implemented under the provisions of the Nooksack Code and therefore, the Defendants cannot be found guilty for failure to pay the tax.

Judgment of acquittal granted.

On December 5, 1980 the Prosecutor for the Nooksack Tribe filed a criminal complaint against tribal members Harry B. Cooper, Jr., Harry E. Cooper, Sr., Kim Cooper, Jack Leathers, and John Leathers. The complaint charges the Defendants with violating Section 7.8.2(e)^[1] of the Nooksack Tribal Code. That section provides that failure to pay any fish taxes assessed by the Tribe on the commercial sale of fish shall be unlawful.

The Defendants filed a pre-trial Motion to Dismiss on the grounds that: (1) the assessment of a fish tax by the Nooksack Tribal Council was an act in excess of the Council's constitutional authority and (2) imposition of the fish tax violates the civil rights of the Defendants by denying them equal protection of the law. The Court denied the motion for the reasons set forth in a Memorandum Opinion dated May 11, 1981.^[2]

The case came to trial on May 12 and 13, 1981. The Court granted the Defendants' motion for a judgment of acquittal on two grounds. The first is that the Prosecutor for the Tribe failed to introduce any evidence proving where the Defendants caught the taxed fish. The second ground is that the Prosecutor failed to introduce sufficient evidence that the Tribal Council effectively implemented the fish tax. These grounds for acquitting the Defendants are explained below.

I.

The Nooksack Treaty Fishing Ordinance, under which the Defendants were charged, sets forth the territory its provisions apply to. Section 1.3.4 states:

"Territory. This ordinance shall apply to fishing activities occurring at the following places and locations: 1) the Nooksack Reservation and adjacent waters; 2) the usual and accustomed fishing grounds and stations of the Nooksack Tribe."

Since the Nooksack Treaty Fishing Ordinance specifically limits its scope to those areas, the tribal Prosecutor has the burden of proving that the alleged violation occurred within the area defined by Section 1.3.4, supra.

The Prosecutor failed to produce any evidence intended to show where the Defendants caught the fish involved in this case. The Court did admit the Defendants' fish tickets into evidence on the Prosecutor's motion. The tickets contained the phrase "on reservation catch area." However, the Prosecutor presented no argument or testimony or other evidence which would lead the Court to believe that the fish were caught in a certain area. Without such evidence the Court cannot conclude that "on reservation catch area" means that the fish were caught in the area which is regulated by the Nooksack Treaty Fishing Ordinance. Since the Nooksack Treaty Fishing Ordinance, Section 1.3.4, supra, expressly delineates the territorial scope of its provisions, the failure of the Prosecutor to prove that the Defendants' activities occurred within that area must necessarily result in this Court ordering a judgment of acquittal for these Defendants.

II.

The failure of the Prosecutor to prove the location from which the fish were caught by the Defendants is sufficient in itself to result in a judgment of acquittal since the Prosecutor must prove, beyond a reasonable doubt, every element of a crime in order to get a conviction. However, the Court finds that another ground exists for acquitting these Defendants. The Court holds that the fish tax, at issue in this case, was not implemented according to the provisions of the Nooksack Tribal Code. Therefore, the Court must conclude that the Defendants cannot be found guilty for failure to pay the tax.

The Nooksack Treaty Fishing Ordinance, Section 8.1^[3] authorizes a tribal fish tax, to be paid on the privilege of taking fish under the ordinance. Section 8.2^[4] of the ordinance sets forth the procedures for implementing the tribal fish tax. Implementation of the tax is to be accomplished by promulgating annual regulations which shall include: the amount and purpose of the tax, the manner of collection, a description of records to be kept, and any other information necessary to the operation of the tax collection process.^[5]

The evidence presented at trial showed that the Tribal Council did not follow the procedure for implementing this fish tax under the Nooksack Treaty Fishing Ordinance. It does appear from the Tribal Council minutes and from the testimony presented at trial, that the Tribal Council did intend to create a tax and to specify the amount and who would collect it. These actions all conform to the Section 8.1 of the Code authorizing the tax.^[6] There was, however, no evidence presented to indicate that the Tribal Council even attempted to implement the tax by amending the annual fishing regulations under Section 8.2.^[7] The Court necessarily concludes from the foregoing that the fish tax was duly authorized by the Tribal Council, but never implemented.

The Tribal Prosecutor presented two arguments intended to persuade the Court that the fish tax should be upheld regardless of whether the procedures laid down in the Nooksack Treaty Fishing Ordinance were followed. He first argued that the Tribal Council did utilize certain procedures to implement the tax and by so doing intended to amend the procedures outlined in Section 8.2^[8] of the Nooksack Treaty Fishing Ordinance. He further argued that the Court is required by the Nooksack Code to uphold the Tribal Council's right to amend an ordinance merely by adopting a new procedure. The Court will respond to each of these related arguments in turn.

A.

The Prosecutor appeared to be arguing at trial that the Tribal Council, by deviating from the implementation provisions of the Nooksack Treaty Fishing Ordinance, automatically amended those procedures. The Court finds this argument to be without merit.

The Prosecutor presented no evidence at trial of what the intention of the Tribal Council was regarding the implementation of the fish tax. The Court cannot conclude, without some supporting evidence, that the Tribal Council intended to amend its Fishing Ordinance by merely following a new procedure.

The Nooksack Tribal Council is a responsible, well-informed government and would not change their procedures without evidencing any intention to do so. The Court finds it very difficult to believe that the Council would change their procedures without providing some notice to the persons whose property rights would be affected by the change. The evidence simply has not overcome the heavy presumption that the Tribal Council would operate a responsible government, well versed on its own Constitution, by enacting regulations affecting the property rights of fishermen which give notice to those persons. The Tribal Council has done precisely that by providing in the Code for annual fishing regulations which give all persons notice for the year and by providing for emergency regulations^[9] in the interim which also gives notice to those affected.

The Court...