--- Am. Tribal Law ----, 2017 WL 2334513 (Colville C.A.), 13 CCAR 37
Colville Tribal Court of Appeals.
LeRoy JERRED, Appellant,
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP16–018, 7 CTCR 16
Decision made on briefs on April 12, 2017
Trial Court Case No. CR–2016–39092
Attorneys and Law Firms
[Richard Lee and Dave Stevens, Office of Public Defender, for Appellant.
Weston Meyring, Office of Prosecuting Attorney, for Appellee.
Before Presiding Justice David C. Bonga, Justice Dennis L. Nelson, and Justice Michael Taylor
STANDARD OF REVIEW
We review findings of facts under the clearly erroneous standard, and errors of law de novo. Colville Confederated Tribes vs. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
The facts of this case concern an alleged sale by the appellant, Leroy Jerred, of a flatbed trailer to Mr. Jack Ferguson the biological nephew of the appellant’s ex-wife Jeanne Jerred. The sale in question occurred after the divorce.
It was determined at trial that Mr. Jerred agreed to sell the flatbed trailer to Mr. Ferguson for $950.00. On the day of the purported sale, October 9, 2015, Mr. Jerred delivered the trailer to 20 Keller School Road in Keller, Washington that was a location that Mr. Ferguson could retrieve the trailer. Mr. Ferguson was not present for delivery but Mr. Jerred received an envelope in which Mr. Ferguson had placed a money order in the amount of $950.00. Mr. Jerred insisted that the sale was to be a cash sale. Mr. Jerred took back the trailer and removed it from 20 Keller School Road. Mr. Ferguson reported to the local law enforcement office on October 13, 2015 that the trailer had been stolen by Mr. Jerred.
The Tribal Prosecutor’s office eventually filed a complaint against Mr. Jerred for two counts. Count I was for Theft (Domestic Violence) and Count II for Malicious Mischief (Domestic Violence). At Trial the jury found Mr. Jerred guilty of Count I for Theft with an enhanced Domestic Violence sentence and not guilty for Count II. Mr. Jerred was sentenced by the Trial Court for the charge of Theft and the sentence was enhanced based upon the Domestic Violence connection.
The appellant timely filed this appeal.
DID THE TRIAL COURT ERR WHEN IT DENIED APPELLANT’S/DEFENDANT’S MOTION TO DISMISS THE DOMESTIC VIOLENCE ENHANCEMENT FOR THE CHARGE OF THEFT?
It has been recognized by the federal government that domestic violence is and has been a general problem that was addressed by the Congressional passage of the Violence Against Women Act in 1994. The Confederated Tribes of the Colville Reservation (Tribes) adopted similar legislation in March of 2005. The Tribes determined that domestic violence is contrary to the interests of their people and their traditional values. The Tribes accordingly adopted similar legislation.
For our purposes there is a need to examine and attempt to determine if there is a Tribal definition for “extended family.”
Chapter 5–5 DOMESTIC AND FAMILY VIOLENCE CODE.
5–5–3 Definitions and Requirements ...
(d) Domestic Violence means the occurrence of one or more of the following acts by a family or household member, ...
(4) Attempting to commit or committing any criminal offense under Colville Tribal law against another family or household member.
(g)“Family or Household Members” include:
(1) Persons who are current or former spouses; ...
(6) Persons who are a part of the extended family of the victim or abuser and who commonly interact with the victim or abuser; ...
The Tribal Court Judge determined that Mr. Ferguson was a member of the extended Jerred family because Mr. Ferguson was the nephew of the former Mrs. Jerred, which would have made Mr. Ferguson a nephew-in-law to the appellant, Leroy Jerred. The Court reasoned that divorce did not mean an end to the extended family and therefore Mr. Ferguson should be considered a member of the extended family. Under the Tribes’ Law and Order Code there is not a definition of extended family so the Code directs that one may look to State law definitions “[w]henever the meaning of a term used in this code is not clear on its face or in the context of the Code, such term shall have the meaning given to it by the laws of the state of Washington, unless such meaning would undermine the underlying principles and purposes of this Code. CTC 1-1-7(d) and (e).
The trial court judge accepted the term “extended family” as defined in the Washington State Indian Child Welfare Act:
“Indian child’s family” or “extended family member” means an individual, defined by the law or custom of the child’s tribe, as a relative of the child. If the child’s tribe does not identify such individuals by law or custom, the term means an adult who is the Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first or second cousin, or stepparent, even following termination of the marriage. RCW 13.38.040(8).
The Trial Judge stated:
The court’s determination goes solely to the question of whether, as a matter of law, the Defendant and alleged victim were no longer extended family members at the time of the alleged crimes. The court concludes that the termination of the marriage between Jeanne Jerred and the Defendant Leroy Jerred did not have the legal effect of terminating the “extended family” relationship between the Defendant and the alleged victim.
However the Panel does not agree with the interpretation by the Trial Court that Mr. Ferguson was a member of the extended Jerred family under Washington law. The State statute RCW 13.38.040(8) that was relied upon by the Tribal Judge sets out which specific in-law relationships count to be considered by the state to be part of the native extended family and are limited to brother-in-law and sister-in-law, but not to a nephew-in-law. The state statutory definitions run directly into the basic concept that if a statute sets out and lists specifically what it covers, those things that are not included in the list are not included.
It should also be noted that the Trial Court did not reflect upon an opinion filed by a panel of the Colville Tribal Court of Appeals on February 4, 2016. The opinion was issued in the dissolution of the marriage between Jeanne Jerred and the appellant in this case, Leroy Jerred, Colville Tribal Court case number AP15-018 and AP 15-019. A statement in the final decision by that Appellate Panel is noteworthy to this case as it stated:
The goal of all dissolutions should be to separate the parties as completely as possible, this is doubly true when there is a history of violence and abuse...”
The issue on appeal in AP15-018, AP15-019 was whether or not the Trial Court had properly ordered the payment of the share of Mr. Jerred’s retirement annuity by placing the burden of collecting the share on Mrs. Jerred. In order to receive the share Mrs. Jerred was to contact her former husband each month for payment. The attorney for the Appellee, Mrs. Jerred, had argued that it was unfair due to the contentious nature of the dissolution to subject Mrs. Jerred to monthly contact with Mr. Jerred to collect her fair share that had been awarded by the Trial court, when the Trial Court could have directed the Civil Service Retirement System to send Mrs. Jerred her court awarded share of the annuity. The Appellate Panel agreed with Appellee’s argument and directed the Trial Court to enter the appropriate Order to the Federal Government for direct distribution of the Retirement funds to Mrs. Jerred so that her contact with Mr. Jerred would be limited in nature.
This Appellate Panel acknowledges that under the Tribes Domestic Violence Act there is not a definition of “extended family” and that the Trial Court appropriately looked to Washington state law. It is common that a definition for extended family for Tribal members is complicated and often times creates a situation where it is difficult to understand and identify who and how members are related. The inherent authority of a Tribe to determine and define who are members of their extended family, appears to the Panel, as a needed exercise of political thought and decision. Without that self-determination it appears that non-members will continue to define what an “extended family” is for the Tribes.
Thus the Trial Court in this case was in error for stating:
The court concludes that the termination of the marriage between Jeanne Jerred and the Defendant did not have the legal effect of terminating the “extended family” relationship between the Defendant and the alleged victim.
Furthermore the Panel concludes that without an official Colville Business Committee definition of “extended family” many decisions may be forthcoming creating judge-made law.
It is hereby DECIDED that the decision of the Jury on Count I, Theft, is AFFIRMED.
The enhanced sentence for Domestic Violence is REVERSED and REMANDED for resentencing.