--- Am. Tribal Law ----, 2024 WL 6046152 (Colville C.A.), 16 CCAR 32, 8 CTCR 36
Colville Tribal Court of Appeals.
Reginald GEORGE, Jr., and Andrea D. GEORGE, et al Appellant
v.
Darnell SAM, et al Appellee
Case No. AP24-003
|
Decided August 23, 2024
Trial Court CV-OC-2022-45038
Before Chief Justice Anita Dupris, Justice Mark Pouley, and Justice Donald Colistro
Dupris, CJ
SUMMARY
This matter came before the Court of Appeals upon an Notice of Appeal filed on June 18, 2024 by Reginald George, Appellant (Appellant) against several named Appellees set out above. Appellant appeals a final order of the Trial Court dated May 21, 2024 in which the Trial Court dismissed the case based on several grounds. The Trial Court held that two of the respondents were dismissed as parties because their actions were as witnesses and did not form a basis for a claim under Appellant’s complaint.
The Trial Court also dismissed the case against all of the tribal employee-respondents on the grounds of sovereign immunity, and dismissed the case against the Judge and Court Clerk on the grounds of sovereign immunity and “absolute judicial immunity.” The Trial Court ruled there was no violation of the Tribes’ Civil Rights Act, CTC , Chapter 5 as there were no materially disputed facts and that Appellant failed to state a claim upon which relief could be granted.
The Initial Hearing was held on August 16, 2024. Appellant Reginald George appeared in person and represented by his Spokesperson, Andrea George. The Appellees, except for Darnell Sam and Jodi Sam, were represented by their Spokesperson, Christopher Kerley. Darnell Sam and Jodi Sam did not appear.
Based on the reasoning below we affirm the dismissal of all of the respondents in their individual and official capacities except the respondent Colville Tribes. We find cause to remand the matter to the Trial Court to address the substantive issue raised by Appellant regarding applying the Washington State statute, RCW 7.94’, the Extreme Risk Protection Order (ERPO).
DISCUSSION
At the Trial Court level both parties argued in depth why the ERPO should and should not have been issued. Appellant argued, inter alia, it violated his tribal civil rights to due process and equal protection, and that the Court adopted and enforced a statutory law of Washington State, one that does not have a counterpart in tribal law. Appellees argued that the Court has interpreted and enforced statutory protection orders in other types of cases, and that CTC Section 2-2-102 allows looking to state law in the absence of tribal law.
The issue of whether the Trial Court should adopt a statutory law of the State of Washington under our applicable law statute, CTC 2-2-102, in the absence of a tribal statute for the ERPO is an important one to address. A question arises in whether CTC 2-2-102 can be used to incorporate a state statute that has a very distinct legislative history for the State of Washington without our legislative body’s own development of its policy on the issue of what types of protection orders the Tribes should allow in similar circumstances.
We acknowledge that the underlying cause of action — or actions — herein that challenge the issuance of the ERPO are a collateral attack on the cause of action that initiated and adopted the State’s ERPO procedures. That is, there may be a question of whether the challenge should have taken place and appealed under the original cause of action in which the ERPO was issued.
The Trial Court made a correct assessment regarding dismissing the individual Appellees in their individual and official capacity. The Trial Court did not answer an important question, however, that may or may not have affected the due process and equal protection rights of Appellant by the issuance of the ERPO. The applicability of the State’s ERPO statute in Tribal Court is one of first impression.
RCW 7-94 et seq. was superceded in 2021, and the relevant section regarding Extreme Risk Order of Protection was incorporated in RCW 7.105.330.
For these reasons we AFFIRM the Trial Court’s rulings dismissing all of the Appellants except the Tribes, and we REMAND to the Trial Court to address the issuance of the ERPO.
It is so ORDERED.
All Citations
--- Am. Tribal Law ----, 2024 WL 6046152, 16 CCAR 32, 8 CTCR 36