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FORT PECK COURT OF APPEALS
ASSINIBOINE AND SIOUX TRIBES
FORT PECK INDIAN RESERVATION
POPLAR, MONTANA
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    THIS APPEAL is from a trial by Tribal Judge wherein Appellant was found guilty of SIMPLE ASSAULT a violation of Title III, Chapter 2, Section 215 of the Comprehensive Code of Justice of the Assiniboine and Sioux Tribes (hereinafter CCOJ), in the Fort Peck Tribal Court, Assiniboine and Sioux Tribes, Fort Peck Indian Reservation, Poplar, Montana. Lawyer Judge Julian Brown presided.

    FOR APPELLANT: Laura Christoffersen, Attorney at Law, P. 0. Box 997, Wolf Point, Montana 59201.

    FOR APPELLEE: Ronald Arneson, Special Prosecutor, P. 0. Box 1027, Poplar, Montana 59255.

    Appellant and Appellee filed briefs with the Fort Peck. Court of Appeals and the Court (hereinafter the Court). At oral argument on August 21, 1987, Appellant and Appellee presented oral arguments.

    OPINION by Arnie A. Hove, Chief Justice, joined by Daniel R. Schauer, Associate Justice and Gary James Melbourne, Associate Justice.

    HELD: THE APPELLANT’S DUE PROCESS RIGHTS GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT OF 1968 WERE VIOLATED WHEN THE APPELLANT WAS NOT AFFORDED HER RIGHTS TO CONFRONT WITNESSES AGAINST HER, HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HER FAVOR AND AT HER OWN EXPENSE TO HAVE ASSISTANCE OF COUNSEL FOR HER DEFENSE. APPELLANT’S CASE IS REMANDED TO THE TRIBAL COURT FOR A TRIAL ON ITS MERITS. THE TRIAL SHALL BE HELD WITHIN THIRTY (30) DAYS FROM THE DATE OF ORAL ARGUMENTS.

    On or about July 7, 1986, Appellant was alleged to have assaulted Eliza Jackson. Appellant allegedly entered Eliza Jackson’s home and hit her in the stomach. Eliza Jackson was seven (7) months pregnant and Appellant’s assault w-as alleged to have resulted in pain and required medical care.

    Appellant’s trial was held May 13, 1987, at the Fort Peck Tribal Court in Poplar before Lawyer Judge Brown. The trial was to begin at 10:00 a.m. The Appellant was late for her trial and her attorney, Clayton Reum, the Tribal Prosecutor at the time of this incident, was not present to represent her at the proceedings.

    The persons summoned to appear were Lola Jones, of Poplar; Ronnie Desjarlias, of Poplar; and Doris Martin, of Poplar. The transcript reveals that the persons summoned to appear on behalf of Appellant did not appear and Appellant was riot present when the Tribe’s Special Prosecutor, Ralph J. Patch, presented the Tribe’s case-in-chief and the only victim and witness was questioned regarding the incident. The transcript also reveals that Lawyer Judge Brown was informed that Eliza Jackson lost her child as a result of the incident.

    At the end of the trial, Appellant was found guilty of Simple Assault and the Court imposed the maximum sentence of three (3) months imprisonment and a fine of $500.00. Appellant served several days of her sentence.

    As a result of the trial, Appellant obtained Christoffersen. Appellant’s counsel filed a Notice of for a Transcript, Request for a Transcript , and Request for a Stay of Execution. The appellant's Notice and oral argument presented essentially one (1) issue which was as follows:

1.  Whether the Tribal Court violated Appellant's civil rights and in doing so denied her due process of law.

    Because of the actions of the various parties in this case, this Court in addressing the above issue and the following two (2) issues will attempt to provide some guidance to Tribal Judges and attorneys and lay counselors practicing in the Fort Peck Tribal Court system. Those issues are as follows:

2.  Whether the Appellant was in contempt of Court by being late for her own trial, and if so, did the Tribal Judge handle such contempt with consistency and fairness to past, present and future defendants and witnesses.

3. Whether Appellant was denied her right to effective assistance of counsel.

Whether the Tribal Court violated Appellant’s civil rights, and in doing so, denied her due process of law.

    In order to properly address this issue, it is necessary for this Court to determine its own jurisdiction and the extent of its review. This Court will then determine what the Appellant's civil rights are, whether any of her civil rights were denied and/or violated, and, if so, was Appellant denied due process of law.

    It is necessary to turn to the CCOJ to determine the extent of this Court’s jurisdiction. This Court has jurisdiction of appeals as granted in I CCOJ 202. I CCOJ 202 reads in part as follows:

"Jurisdiction of Court of Appeals.

The jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court. The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence...."

    This Court has jurisdiction over appeals from final orders and judgments of the Tribal Court and in this case, the judgment of conviction.  This Court has authority to review "de novo all determination of the Tribal Court on matters of law." This Court’s opinion will be limited to reviewing whether the Tribal Court’s determinations on matters of law were correct. In this case the Court will look to the transcript to determine if the Tribal Court properly determined the matters of law regarding Appellant’s civil rights.

    The Indian Civil Rights Act of 1968 (hereinafter referred to as I.R.C.A.) granted certain civil rights to Indians. These rights are found at 25 U.S.C.S. Section 1302 and are as follows:

No Indian tribe in exercising powers of self-government shall--

    (1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of people peaceably to assemble and to petition for a redress of grievances;

    (2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

    (3) subject any per son for the same offense to be twice put in jeopardy;

    (4) compel any person in any criminal case to be a witness against himself;

    (5) take any private property for a public use without just compensation;

    (6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process’ for obtaining witnesses in his favor, and at his own expense to have assistance of counsel for his defense;

    (7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500.00 or both;

    (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or

    (9) pass any bill of attainder or ex post facto law; or

    (10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

    There are several civil rights listed in 25 U.S.C.S. 1302(6) that Appellant’s brief addresses as having been denied. In 25 U.S.C.S Section 1302(6), a defendant has the right "...to have compulsory process for obtaining witnesses in his favor...." This is a fundamental right and imperative to the proper administration of justice. Appellant contends that she was denied her right to call witnesses in violation of the I.R.C.A. This Court would agree with Appellant’s contention.

    In the Court's file there is evidence by way of summons issued and returned, that certain witnesses, who may or may riot have had exculpatory evidence, were summoned to appear upon Appellant’s behalf. It is clear from the transcript that those witnesses did not appear and testify. Because of the constitution, there are certain fundamental rights afforded to defendant, and because of the enactment of the I.R.C.A. extended to Indian defendants in Tribal Court, not afforded under common law.

    At common law, a defendant charged with a felony cannot demand as a matter of right compulsory process for his witnesses. Under the constitutions of the several states, one charged with a criminal offense has the right to have compulsory process to procure the attendance of witnesses. The right thus given to the defendant in a criminal prosecution is the same right that was possessed by both parties in civil cases and by the prosecution in criminal cases. Apart from the exercise of the right at public expense, the right is generally not subject to the discretion of the court; it is usually absolute, at least as to process for necessary witnesses, even though the persons needed as witnesses live outside the county of the venue. However, several jurisdictions have upheld the exercise of discretion by the trial court refusing to compel the attendance of witnesses under certain circumstances. If they are beyond the limits to which the process of the court runs, the defendant is entitled to a commission to take their testimony by deposition, for he has the right to have their testimony before the court even if its process is powerless to compel their attendance.
    A defendant ‘s constitutional right would be of little value to him unless he is allowed a reasonable time for making process effectual. 21A Am Jur 2d, Criminal Law. Section 953.

    As set forth above, there are methods adopted in the various court systems for protecting a defendant’s fundamental civil rights to have witnesses compelled to attend a trial and present testimony. Appellant’s brief sets forth a recommended remedy for this court. Appellant’s brief states, " the appropriate remedy would have been to send the police out to identify and physically bring these persons to the court." This Court agrees that Appellant’s remedy is appropriate and should have been implemented in this case. The Tribal Court was not powerless to compel attendance of Appellant’s witnesses since they did reside on the reservation.

    This Court also agrees with Appellant’s contentions that "The Court abused its discretion in continuing a trial of this matter without obtaining the testimony of witnesses summoned upon the Defendant’s behalf" and that "Such abuse of discretion may not be condoned." A Tribal Judge should never enter a verdict until all evidence is received, and in a criminal case, until the testimony, of the witnesses summoned by a defendant is received into evidence or a knowing waiver of this civil right is obtained.

    In 25 U.C.S.C. 1302(6), a defendant also has the right "...at his own expense to have assistance of counsel for his defense...."  Appellant contends that she was denied her right to have counsel. This Court would agree with Appellant’s contention.

    In the transcript, the Appellant was advised that her present counsel could not represent her at the time of her appearance for the trial. Transcript, Page 16, Lines 8-19 (hereinafter cited Tr. P._, L._ ). Appellant was not asked if she wanted to obtain counsel before proceeding, but advised that testimony was taken from the complaining witness and evidence was admitted such as complainant’s hospital records, etc. Tr. P.16, L. 24 - P. 17, L.12.

    Although not raised by Appellant, there was another civil right of Appellant’s that was denied. 25 U.S.C.S. 1302(6) gives Appellant the right "...to be confronted with the witnesses against him...." Appellant was not confronted by the only witness against her although she was informed she may cross—examine the witness. Tr. P. 17, L. 8-9. Appellant was not given the opportunity to confront the only witness against her, and therefore this civil right was violated.

    In oral argument, Appellee argued that the following colloquy indicates a knowing waiver of her right to counsel and that Appellant wanted to proceed. The colloquy referred to went as follows:

    This colloquy clearly does not reflect a knowing waiver by Appellant of any her rights under the I.C.R.A. A proper colloquy would have went as follows:

    There is no such colloquy in the transcript The above colloquy would provide evidence of a knowing waiver by Appellant of her civil rights under 25 U.S.C.S. Section 1302(6). The colloquy from the transcript lacks a clear knowing waiver by the Appellant of any of her civil rights specifically discussed above.

    This court has determined and set forth Appellant’s civil rights under 25 U.S.C.S. 1302(6). This Court has discussed which of those civil rights were violated in the trial May 13, 1987. The last part of the issue to be determined is whether Appellant was denied due process. "...[D]ue process under Indian Civil Rights Act (25 U.S.C.S. Section 1302) is same as that in federal constitution...." Red Fox v. Red Fox, (1977, CA9 Or) 564 F2d 361. To determine whether Appellant was denied due process, it is necessary to determine what due process requires.

    Where life and liberty are involved, due process requires that a criminal trial must proceed according to the established procedure or rules of practice applicable to such cases. Moreover, in circumstances in which the very character of the criminal procedures employed make it impractical to establish the degree of prejudice which has resulted therefrom, a defendant need not show that he was actually prejudiced during his trial in order to establish a denial of due process of law; it is sufficient if he can show that there was a reasonable probability of prejudice. Failure to accord a fair hearing violates even minimal standards of due process and constitutes a denial thereof. Since fair hearing requires an opportunity to prepare, due process may be violated by an overhasty trial. And since it is basic to due process that the accused have a fair opportunity to tell his story in a fair trail, reasonable notice of the charges and an adequate opportunity to defend against them are basic elements of due process in a criminal proceeding. But the mere fact that the accused was denied a legal right, or even a constitutional right, does not establish a denial of due process unless the fairness of his trial was somehow tainted thereby. 21A Am Jur 2d Criminal Law Section 826.

    It is established procedure, that an Appellant is permitted to have representation at her own expense, confront witnesses against her, and have witnesses brought into testify on her behalf. In this case, the transcript shows there is a reasonable probability of prejudice to the Appellant because established procedure was riot followed. In addition, Appellant was not given a fair opportunity to tell her story by being permitted to call her witnesses, and, as a result thereof, the fairness of the trial may have been tainted. Therefore, this Court must find that Appellant was denied due process.

    Lawyer Judge Brown failed to afford Appellant several civil rights under 25 U.S.C.S. Section 1302(6) or to obtain a clear knowing waiver from Appellant of those civil rights. Therefore, this Court has no alternative but to remand this case to the Tribal Court for a new trial on the merits. Because Appellant signed a Waiver of Jury Trial on July 8, 1986, this trial shall be a judge trial held within thirty (30) days.

II.

Whether the Appellant was in contempt of Court by being late for her own trial, and if so, did the Tribal Judge handle such contempt with consistency and fairness to past, present and future defendants and witnesses.

    Contempt of court is a crime under III CCOJ 410. This Section reads in full as follows:

    Criminal contempt.

    All courts of the Assiniboine and Sioux Tribes have power to punish for contempt of their authority the following offenses:

    (a) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; or

    (b) disobedience or resistance to any process, order, subpoena, warrant or command of the Court.

    Criminal contempt is a Class A misdemeanor.

    On May 6, 1987 at 4:20 p.m., Gerald Jackson, a duly authorized Peace Officer, served a Summons on Linda Clark wherein she was commanded to appear before the above entitled Court at Wolf Point, Montana, on the 13th day of May 1987, at 10 o’clock a.m. to serve as defend-ant in this case. Failure to appear on receipt of this Summons without good cause made her liable to prosecution.

    The transcript seems to lack any cause, let alone good cause, for Appellant’s failure to appear. Appellant’s brief avoids this issue entirely and appears to attempt to minimize the matter with the following language:

"...Eliza Jackson was the only person who had answered the summons. The Defendant appeared at 11:25 A.M...."

    Although Appellant appeared the day of the hearing, she appeared over an hour late. As a result, Appellant did disobey a process, order, subpoena, warrant or order of the Tribal Court. Appellant did not appear to have good cause for her failure to appear -at the scheduled time. Therefore, Appellant was in contempt of court and should have been punished for a violation of a Class A misdemeanor.

    Lawyer Judge Brown acknowledged that Appellant might be in contempt of court, however, decided not to hold her in contempt of court nor impose an additional penalty for her failure to appear on time. Lawyer Judge Brown did hold Order to Show Cause hearings on Appellant’s witnesses who did not appear. However, this Court does not know what penalties were imposed.

    This Court has adopted a standard of holding defendants in contempt of court for being late to their appeal and has consistently imposed jail sentences. In this case, Appellant’s attendance at the trial was necessary to the proper administration of justice and an additional sentence of imprisonment for criminal contempt, to run concurrently or consecutively, would have been appropriate. This standard should be adhered to by all Tribal Judges in order to establish consistency and fairness to defendants within the Fort Peck. Tribal Court system unless good cause exists for being late.

III.

Whether Appellant was denied her right to effective assistance of counsel.

    Mr. Clayton Reum was the Tribal Prosecutor at the time of the Appellant’s alleged Simple Assault. Mr. Reum failed to inform Appellant of this and did not appear at the trial. Because of this, the above issue was raised and because it is unique to this Court, the same will be addressed to provide guidance to attorneys and lay counselors.

    Appellant argues that she was denied effective assistance of counsel and, therefore, her conviction should be reversed. Appellant’s brief with a proposed test read in part as follows:

"The test for reversal of a conviction on the grounds of ineffective assistance of counsel is very steep. However, the neglect shown by Clayton Reum certainly meets and exceeds this threshold. The test is as follows:

"' Persons accused of crime are entitled to the effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases.’ In order to find that failures of counsel require reversal, the Supreme Court must be able to say that they are errors a reasonable, competent attorney acting as diligent, conscientious advocate would not have made." State v. Rose, 187 Mont. 74, 608 P.2d 1074, (1980). State v. Jubas, 197 Mont. 185, 642 P.2d 147, 39 St.Rep. 456 (1982). Strate v. Hall, ____Mont.____, 662 P.2d 1306, 40 St.Rep. 621 (1983)."

    This Court has never been asked to attempt to measure the competence of attorneys and lay counselors practicing before the Fort Peck Tribal Courts. This Court has never been asked to review the failures of attorneys and lay counselors to determine if such failures demand reversal of a judgment of conviction. Before this Court can measure the competence of attorneys and lay counselors and review the failures of attorneys and whether the same demands a reversal, a test must be adopted.

    In IV CCOJ 501, civil procedure permits the application of certain laws and reads in full as follows:

        Applicable laws.

    In determining any case over which it has jurisdiction, the Court shall give binding effect to

(a) any applicable constitutional provision, treaty, law, or any valid regulation of the United States;

(b) any applicable provision of the tribal Constitution or any law of the Tribes riot in conflict with federal law;

(c) any applicable custom or usage of the Tribes not in conflict with any law of the Tribes or of the United States. Where doubt arises as to such customs and usages, the Court may request the testimony, as witnesses of the Court of persons familiar with such customs and usages.

(d) where appropriate, the Court may in its ‘discretion be guided by statutes, common law or rules of decision of the State in which the transaction or occurrence giving rise to the cause of action took place.

    The criminal procedure sections at Title II of the CCOJ do not contain a specific applicable laws section. An applicable laws section is necessary for criminal procedure as well as civil procedure. This Court finds it necessary and appropriate to apply IV CCOJ 501 for civil procedure to criminal procedure until such time as the CCOJ is amended to include an applicable law section for criminal procedure. This Court, in applying IV CCOJ 501, hereby adopts the test in Appellant’s brief and set forth above for reviewing errors of an attorney or lay counselor to determine whether a reversal is necessary.

    In this case, Clayton Reum failed to advise Appellant that because of his previous employment, he could not represent her. This Court is hard pressed to see where his failure requires a reversal of Appellant’s conviction. In addition, this failure in no way reflects on Clayton Reum’s competence or indicates that a reasonable, competent attorney or lay counselor would not make such an easy mistake. Attorneys and lay counselors, because of the nature of the occupation, will acquire conflicts of interest during the course of their business wherein continued representation of one client may require withdrawal from further representation of another at the time of a hearing or trial.

    The failure is obviously on the part of the Tribal Court in not permitting the Appellant a continuance to obtain new counsel. In this case, Clayton Reum was not permitted to represent Appellant because of his previous employment as Tribal Court Prosecutor. The Tribal Court recognized that it was not Appellant’s fault that Clayton Reum could not represent her. Tr. P. 16, L. 8-16. The Montana Supreme Court held in State v. Lundblade, ____, Mont. ____, 691 P.2d 831, 41 St.Rep. 2208 (1984) that a defendant who diligently attempts to locate counsel and expresses a desire to have counsel must be given the opportunity to obtain counsel.

    In Lundale, the defendant had discharged his counsel but attempted to retain new counsel. He sought the help of an attorney who indicated that he would assist the defendant only if a continuance were to be granted in the action. The Court refused to grant the continuance so the defendant appeared without counsel and renewed his motion for a continuance. Finally, counsel was appointed for the defendant but additional time to prepare was not granted. The defendant was convicted and the Montana Supreme Court ruled that a fair trial had been denied.

    Although distinguishable, this case is similar to Lundale. Appellant had retained counsel and the transcript reflects no clear knowing waiver of her right to retain new counsel. Therefore, the Tribal Court should have permitted Appellant an opportunity to obtain new counsel in order to insure a fair trial.

    As for attorneys and lay counselors, Clayton Reum, to have avoided this situation, should have reviewed the American Bar Association Rules of Professional Rules of Conduct (hereinafter cited as ABA Rules) adopted by this Court and in effect at the time. In ABA Rule 1.9(a), Mr. Reum would have seen that his prior employment as Tribal Prosecutor precluded his representation of Appellant and he should have declined to represent her.

    A notice to attorney and lay counselors practicing in the Tribal Courts, the Fort Peck Tribes have since then adopted their own Rules of Professional Conduct. Attorneys and lay counselors should now review the Tribes rules since these rules will be applied to subsequent issues involving attorneys and lay counselors practicing before the Tribal Court.

___________________________________________________________________________________________________

    IT IS THE UNANIMOUS DECISION OF THIS COURT TO HOLD THAT THE APPELLANT’S DUE PROCESS RIGHTS GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT OF 1968 WERE VIOLATED WHEN THE APPELLANT WAS NOT AFFORDED HER RIGHTS TO CONFRONT WITNESSES AGAINST HER, HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HER FAVOR AND AT HER OWN EXPENSE TO HAVE ASSISTANCE OF COUNSEL FOR HER DEFENSE. APPELLANT’S CASE IS REMANDED TO THE TRIBAL COURT FOR A TRIAL ON ITS MERITS. THE TRIAL SHALL BE HELD WITHIN THIRTY (30) DAYS FROM THE DATE OF ORAL ARGUMENTS.

    DONE this _____ day of September, 1987.

BY THE COURT OF APPEALS:

__________________________
ARNIE A. HOVE, Chief Justice

__________________________
DANIEL R. SCHAUER, Associate Justice

__________________________
GARY JAMES MELBOURNE, Associate Justice


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