--- Am. Tribal Law ----, 2022 WL 3723225 (Swinomish Tribal Ct.)
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Swinomish Tribal Court.
 
SWINOMISH TRIBAL COMMUNITY, Petitioner,
v.
2002 BMW (r.o. San Juanita Lazono), Respondent.
Case No.: CVCF-2021-0015
|
March 1, 2022

 

Memorandum Opinion

Mark W. Pouley, Chief Judge Swinomish Tribal Court

THIS MATTER came before the Court on the Respondent’s Motion to permit her to argue to deny the Tribe’s Petition for Civil Forfeiture of her 2002 BMW on the grounds the forfeiture would be an “excessive fine” in violation of the Indian Civil Rights Act (ICRA). Based on the briefs submitted and allegations in the record, the court issues this ruling.

FACTS

The facts of this case are disputed, but for the purposes of this motion, the Court accepts as true the facts alleged in the Tribe’s Petition for Forfeiture.

On June 3, 2021 a 2002 BMW owned by San Juanita Lozano was at the Swinomish Casino. Ms. Lozano’s son-in-law was driving the vehicle. For purposes of this decision the court presumes the search and seizure of the vehicle was permissible. The vehicle contained approximately 191.7g of Heroin; 80g of Methamphetamine; 35g of Cocaine; and pills containing Acetaminophen and a cutting agent with a weight of 18.2 grams. On June 11, 2021 the Tribe file a notice of seizure and intention to institute forfeiture proceedings pursuant to STC 4-10.050.

On August 5, 2021 the Tribe brought a Motion for Summary Judgment alleging the vehicle was subject to forfeiture pursuant to STC 4-10.050. While the Respondent did not file a formal response, she sent a letter denying knowledge of the criminal activity and explaining the hardship she will suffer if the car is forfeited. In addition, the office of Swinomish Defense Services requested to file, and the court accepted, an Amicus Brief raising the issue of the application of the prohibition against excessive fines contained in the Indian Civil Rights Act. The Swinomish Court of Appeals affirmed the Trial Court’s decision to allow the Amicus Brief. Subsequently, the Respondent retained counsel and today the question is squarely before the court.

ISSUE

1. Does the “excessive fines” clause of the Indian Civil Rights Act provide an applicable defense in a civil forfeiture proceeding in the Swinomish Tribal Court?

2. If this is a valid defense, how should the Court determine if the forfeiture amounts to an excessive fine, and;

3. Does the owner of the property bear the burden of proving that a requested forfeiture is impermissibly excessive?

OPINION

In answer to these questions, the court finds that actions prosecuted under the Swinomish Tribe’s civil forfeiture statute are limited by the Indian Civil Rights Act prohibition against excessive fines. The court will determine if a forfeiture amounts to an excessive fine by weighing the proportionality of the fine in relation to the totality of circumstances of the underlying offense. The owner of the property subject to forfeiture bears the burden of proving that loss of the property would amount to an excessive fine.

The Indian Civil Rights Act at 25 U.S.C.A. § 1302 (a)(7)(A) states that “No Indian tribe in exercising powers of self-government shall ... require excessive bail, impose excessive fines, or inflict cruel and unusual punishments.” The language of ICRA (a)(7)(A) mirrors that of the Eighth Amendment of the U.S. Constitution. As this Court has previously explained, “Where the language of the ICRA and the federal constitution are so similar, federal case law interpreting the rights protected by that language will be most persuasive.” SITC v. Reid, CRCO-2011-0079 (March 2012). While the Swinomish Tribal Court is not bound to adopt such case law, the Court “will generally follow these rules in tribal court unless such application is contrary to the Tribe’s unique history, customs and practices.” SITC v. Stone, CRCO-2004-0324 (JAN 30, 2007).

The leading U.S. Supreme Court case regarding the application of the excessive fines clause of the Constitution to civil forfeiture proceedings is U.S. v. Austin, 509 U.S. 602 (1993). In Austin the court noted the prohibition against excessive fines found in the Eighth Amendment is specifically not limited to criminal proceedings. In fact, whether a matter is “civil” or “criminal” is immaterial, instead the court reviews if the fine is “purely remedial” or even partially “punitive”. Austin at 608. A fine that is even partially punishment may not be excessive. Id. At 610. The court went on to recognize that a civil forfeiture procedure, tied to the use of property in a criminal drug offense, was at least partially intended as punishment and therefore subject to the limitations of the Eighth Amendment.

There is debate about the importance of the Swinomish Code not providing an “innocent owner” defense in forfeiture proceedings. While many jurisdictions include such a defense, the Swinomish forfeiture statute does not. see In re 1999 Ford Escort 500-VEX, CVFF2011-0013 (July 18, 2011). The owner’s culpability, or lack thereof, is not alone relevant to whether the forfeiture may proceed. In other words, the fact the owner of the vehicle lacked knowledge of the vehicle’s use in criminal conduct does not prevent the Tribe from seeking forfeiture of the vehicle.

While it is true that the Austin court noted the existence of an innocent owner defense highlighted the punitive nature of the forfeiture before the court, it was not a necessary element to the court’s finding the forfeiture was punitive. In fact, prior to discussing the innocent owner defense, the court noted that the purpose of the forfeiture law, even for “innocent owners” was to induce owners to exercise greater care in transferring possession of their property. Austin 618. The Tribe argues here that the owner should have known her son-in-law was involved in drugs and that he might use her car to further his criminal behavior. Further, because drugs cause great harm to the tribal community, forfeiture of the vehicle will discourage this owner, and others in her position from allowing their vehicles to be used in this nature in the future. This is exactly the type of punishment aimed at deterrence that demands a review of the forfeiture in relation to the excessive fines clause of the ICRA.

None of the arguments before the court suggest a particular interpretation of the excessive fines clause of ICRA is “contrary to the Tribe’s unique history, customs and practices.” See, Stone. However, the Court notes the unique role civil forfeiture plays in tribal jurisprudence. Because federal court decisions have limited tribes from exercising their inherent jurisdiction to prosecute all crimes committed within reservation boundaries, see Oliphant v Suquamish, et. al., tribes are left to other measures to protect the health and safety of our communities. Civil penalties, including forfeiture of property, provide tribes with mechanisms to enforce or discourage conduct within tribal lands by non-indians. In Austin the court noted that forfeiture of property tied to drug crimes was often driven by the fact that criminal actions alone were insufficient to deter the devasting criminal behavior. This is precisely the tribe’s argument seeking strict enforcement of the forfeiture code. Given the role of the forfeiture code in this community, the Swinomish statute must be seen as primarily punitive and thus subject to the limitations of ICRA. Using this same analysis, the Tulalip Tribal Court of Appeals concluded that the excessive fines clause of ICRA applied to the Tulalip civil forfeiture statute. Tulalip Tribes v. 2008 White Ford Econline Van, 11 Am. Tribal Law 199 (May 31, 2013)

The parties agree that if the Swinomish Tribal Court will apply the excessive fines limitations of the ICRA to civil forfeitures, the Court should adopt the proportionality test enunciated in State v. Timbs, 169 N.E.3d 361, 367 (Ind. 2021)(TimbsII). The proportionality test examines:

1) The role the property had in the crime;
2) The value of the property and if it was ‘grossly disproportionate’ to the underlying offense; and
3) The culpability of the owner.

In balancing these factors, the court must decide if, under the totality of the circumstances, the punitive value of the forfeiture is grossly disproportional to the gravity of the underlying offenses and the owner’s culpability for the property’s criminal use.

The Court finds the Timbs analysis reasonable and persuasive and will adopt this test for the Swinomish Tribal Court. The Court also concludes that the “value” of the vehicle may be determined by both the objective market value of the vehicle and the subjective value of the vehicle to the owner before the court. “As Timbs II explained, it’s appropriate to evaluate the market value of the forfeiture relative to the owner’s economic means—because ‘taking away the same, piece of property from a billionaire and from someone who owns nothing’ do not reflect equal punishments. 134 N.E.3d at 36.” Likewise, the law supports placing the burden of proving that a forfeiture amounts to a prohibited excessive fine on the owner of the property.

The Tribe suggests that if the proportionality test is utilized, the Court should disregard the analysis of the culpability of the owner since there is no “innocent owner” defense. The Court reiterates the error of this analysis. While the innocence of the owner alone will not defeat a forfeiture claim, the lack of culpability of the owner is an important factor to weigh in the proportionality of the forfeiture. However, considering the tribe’s limited ability to otherwise protect the community from some criminal offenses, the court will give greater weight to the “highly culpable” owner.

This matter should be set for a fact-finding hearing. At the hearing, the Tribe bears the burden to prove that the identified vehicle is subject to forfeiture based on the requirements of STC 4-10.050. If the owner of the property believes forfeiture of the vehicle amounts to an impermissibly excessive fine, she bears the burden to prove the fine is grossly disproportional as supported by a Timbs II analysis.

All Citations
--- Am. Tribal Law ----, 2022 WL 3723225