Skokomish Indian Tribe v. Mosbarger, (2006)

• Decision Date: 26 June 2006
• Docket Number: I 12774,I 11834
• Parties: SKOKOMISH INDIAN TRIBE, PLAINTIFF AND APPELLEE, v. BEVERLY MOSBARGER, DEFENDANT AND APPELLANT. SKOKOMISH INDIAN TRIBE, PLAINTIFF AND APPELLEE, WILLIAM L. PARSONS, DEFENDANT AND APPELLANT.
• Court: Skokomish Tribal Court of Appeals

SKOKOMISH INDIAN TRIBE, PLAINTIFF AND APPELLEE, v. BEVERLY MOSBARGER, DEFENDANT AND APPELLANT.

SKOKOMISH INDIAN TRIBE, PLAINTIFF AND APPELLEE, WILLIAM L. PARSONS, DEFENDANT AND APPELLANT.

Nos. I 12774, I 11834

Skokomish Tribal Court Of Appeals

June 26, 2006

SYLLABUS BY THE COURT

Trial court (1) ruled that it had civil jurisdiction over non-Indian motorists cited for speeding on state highways within a state-owned right-of-ways passing through the interior boundaries of the reservation, and (2) found Defendants in two separate incidents guilty and imposed civil fines on them. Court of Appeals holds (1) a non-Indian motorist speeding through a restricted speed school zone for the school attended by virtually all of the tribe's children is subject to tribal jurisdiction, even though the infraction occurred on state-owned land; and (2) where Tribe failed to prove precisely where an infraction occurred and failed to establish facts about the character of the area where the infraction occurred, the tribal court lacked a basis for asserting jurisdiction over a non-Indian. Trial Court order affirmed as to one Appellant and reversed as to the other.

Brian H. Collins, Office of Tribal Attorney, for Appellee Skokomish Indian Tribe; Robert Johnson, for Beverly Mosbarger; Bruce Finlay, for William L. Parsons.

Before: Lisa Brodoff, Chief Justice; Robert Miller, Associate Justice; Richard Woodrow, Associate Justice.

OPINION

MILLER, J.

In this consolidated appeal, Defendants/Appellants Beverly Mosbarger (Mosbarger) and William L. Parsons (Parsons) contend that the Skokomish Tribal Government and Tribal Court lack jurisdiction to impose civil penalties on them for speeding on the Skokomish Indian Reservation. At a hearing on August 18, 2005, the Skokomish Trial Court found Mosbarger liable for speeding on Washington State Highway 106 in a school zone on the Reservation on May 25, 2005 and imposed a civil fine on her. At a hearing on February 17, 2005, the trial court found Parsons liable for speeding on U.S. Highway 101 on the Reservation on October 1, 2004 and imposed a civil fine on him. At a hearing on June 9, 2005, the trial court denied Parsons' Motion to Reconsider for Lack of Jurisdiction and on June 16, 2005 the trial court filed the Order Denying Motion to Reconsider. Mosbarger and Parsons appealed those decisions.

For the reasons set forth below, and after fully considering the written and oral arguments of the parties and the relevant federal and tribal law, this Court affirms the August 18 2005 Decision of the trial court imposing a civil penalty on Mosbarger for violating the motor vehicle speed limit in a school zone located on the Reservation.

We vacate, however, the trial court decision finding Parsons liable and we dismiss the Tribe's suit against Parsons due to a lack of jurisdiction because the Tribe failed to establish the basic factual prerequisites necessary for this Court to determine whether the Tribe has civil jurisdiction in Parsons' situation.

I. Factual Background

The following facts are undisputed on appeal: on May 25, 2005, Mosbarger was driving on Washington State Highway 106, at a point within the external boundaries of the Skokomish Reservation. She was cited by a tribal police officer for violating the Tribal Code due to driving her vehicle 31 miles per hour in a zone with a posted 20 mile per hour speed limit. She was exceeding the 20 mph speed limit in a "posted school zone" and "an active school zone" in front of the Hood Canal School on the reservation. The school is located directly on Highway 106. The 20 mph speed limit and the existence of the school zone were posted. The infraction occurred at approximately 9:01 a.m. on a Wednesday.

We take judicial notice of the following facts: the Hood Canal School is a grade school (kindergarten through eighth grade) attended by 351 students in March 2004, of which, according to a federal report filed by the school, 125 students were in the category of "Federally recognized, including Alaska Natives"; the office hours of the Hood Canal School are 7:30 – 4:00 and students are scheduled to be at school from 8:45 a.m. to 3:00 p.m. each school day; the Hood Canal School was in session on May 25, 2005; and the Skokomish Tribal Nation has approximately nine hundred enrolled members/citizens.^[1]

In its appellate brief, the Tribe alleges that school was in session on the date Mosbarger was speeding in the school zone and that children were present on the school ground immediately adjacent to the highway. The Tribe also asserts that most, if not all, Skokomish Tribal children residing on the reservation attend the Hood Canal School.^[2] Mosbarger did not dispute these allegations by the Tribe.

Parsons was cited for speeding for traveling 57 miles per hour in a 45 miles per hour posted zone on U.S. Highway 101 within the exterior boundary of the Reservation. The infraction describes the location of the alleged speeding as "Hy. 101 (N)/Hwy. 106."

II. Standard of Review

"The Skokomish Tribal Code is silent regarding the standard for appellate court review of a trial court decision. In the absence of any specified standard of review, we review issues of fact under the 'clearly erroneous' standard and issues of law de novo." Johns and McGhee v. Allen, No. SKO CV 06/03-171, at 1 (Skokomish Tribal Ct.App. Oct. 22, 2004) (forthcoming Vol. 6 Northwest Intertribal Court System Appellate Reporter). The question whether the Skokomish Tribe has civil jurisdiction over the conduct of non-Indians within the reservation's border is a question of law which we review de novo. Compare Smith v. Salish Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006 (en banc) ("The question of tribal court jurisdiction is a federal question of law, which we review de novo.").

III. Discussion

The jurisdictional issue presented in this appeal is whether the Tribal Government and the Tribal Court have regulatory and adjudicatory jurisdiction to prosecute the civil traffic infractions issued to Mosbarger and Parsons for speeding on the Skokomish Reservation. "Jurisdictional disputes have been called '[t]he most complex problems in the field of Indian Law.'" County of Lewis v. Allen, 163 F.3d 509, 513 (9th Cir. 1998) (en banc) (quoting William C. Canby, Jr., American Indian Law 111 (1998)). It is the duty of a tribal court "to explain to the parties the precise basis for accepting jurisdiction . . . ." National Farmer's Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 857 (1985).

The Constitution of the Skokomish Tribe provides: "Except as prohibited by the Treaty of Point No Point and Federal Law, the Skokomish Tribe shall have jurisdiction over all persons, property, lands . . . and all activities occurring within the exterior boundaries of the Skokomish Indian Reservation." Skokomish Const., art. I, sec. 1, www.skokomish.org.^[3] We are directed by tribal law to review the tribal treaty and federal law to determine the issue before us. We have reviewed the 1855 Skokomish Treaty of Point No Point and find no relevant provisions to guide us. See www.skokomish.org/SkokConstitution&Codes/Constitution/Treaty.htm. Thus, we will turn to federal case law because we are unaware of any federal statutory provisions that apply to this situation, and the parties have cited none.

There is extensive federal case law on the subject of tribal civil jurisdiction over non- Indians and their activities on Indian reservations. The rule that we must apply is found in Montana v. United States, 450 U.S. 544 (1981). The Supreme Court has called Montana the "pathmarking case concerning tribal civil authority over nonmembers." Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997); accord Nevada v. Hicks, 533 U.S. 353, 358 (2001).

According to the Strate Court, "Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions[.]" Strate, 520 U.S. at 446. The two exceptions that recognize factual situations where a tribal government does possess civil jurisdiction over non-Indians for their activities on non-Indian owned lands within a reservation were defined in Montana, 450 U.S. at 565-66:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangementsà.

A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. (citations omitted).

A. Mosbarger

In addressing Mosbarger's appeal, we focus on the second Montana exception because the Tribe did not allege that she had entered any kind of contract or "other arrangements" with the Tribe or its members that might recognize jurisdiction in the Tribe under the first exception. The Supreme Court test for the second exception is plainly a factual one: Does the "conduct of non-Indians on fee lands within [a] reservation . . . threaten[] or ha[ve] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, 450 U.S. at 566. We will apply that test to the factual situation presented in this case.

On May 25, 2005, Mosbarger was driving on the Skokomish Reservation on Washington State Highway 106. In a nearly...