--- Am. Tribal Law ----, 2025 WL 435706 (Fort Peck C.A.)
Only the Westlaw citation is currently available.
Fort Peck Court of Appeals.
 
Jason Wise SPIRIT, Appellant,
v.
FORT PECK TRIBES, Appellee.
 
CAUSE NO. AP # 884
|
FILED FEBRUARY 3, 2025

Appeal from the Fort Peck Tribal Court, Lonnie Headdress, Presiding Judge.

Before E. Shanley, Chief Justice; J Grijalva, Associate Justice; and B.J. Jones, Associate Justice.

 

ORDER AFFIRMING TRIBAL COURT

BACKGROUND

¶ 1 This matter concerns Appellant’s argument that he was denied his constitutional right to confrontation when he was convicted of Aggravated Sexual Assault of a Minor after the victim testified by closed circuit camera. Appellant further argues that the Tribes failed to call expert witnesses to testify to reports contained in the discovery that listed a different individual as the perpetrator, when these witnesses were listed on the Tribes’ complaint.

¶ 2 Appellant filed Notice to Appeal his conviction on August 2, 2024. This Court granted review of the appeal on August 29, 2024 pursuant to 2 CCOJ 205(a) and issued a briefing schedule. The Tribes filed a Response Brief on September 25, 2024.

 

STATEMENT OF JURISDICTION

¶ 3 The Fort Peck Appellate Court may review final orders from the Fort Peck Tribal Court. 2 CCOJ § 202. The Judgment of Conviction is a final order for purposes of review.

 

STANDARD OF REVIEW

¶ 4 This Court reviews de novo all determinations of the lower 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.

 

ISSUES

1. Did the Tribal Court violate Appellant’s right to confrontation pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1302(a)(6) by allowing the victim to testify via closed circuit camera?

2. Did the Tribal Court violate Appellant’s right to due process when the Tribes did not call witnesses with potential exculpatory information to testify at trial?

 

DISCUSSION

I. The Tribal Court did not violate Appellant’s right to confrontation pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1302(a)(6), by allowing the victim to testify via closed circuit camera.

¶ 5 The right to confrontation is a cornerstone of due process in criminal trials. The Indian Civil Right Act (ICRA), 25 U.S.C. § 1302, provides Defendants in Tribal Court with various rights modeled on the United States Constitution, including the right to confrontation. Specifically, the ICRA prohibits a Tribe from:

Deny[ing] 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 the assistance of counsel for his defense.

25 U.S.C. § 1302(a)(6) (emphasis added).

¶ 6 While the constitutional right to confrontation generally requires actual face-to-face confrontation, the Supreme Court of the United States and federal and state statutes have relaxed that requirement due to overriding policy reasons. One such policy rationale involves testimony by child victims in abuse cases, where there is a particularly strong public interest in minimizing trauma to the alleged victims.

¶ 7 As pointed out in the Tribes’ Response brief, the Supreme Court of the United States has addressed the concerns about closed circuit testimony of a six-year-old child victim and its impact on the Defendant’s right to confrontation in Maryland v. Craig, 497 U.S. 836 (1990). In that matter, the Court found that a defendant’s “right to confront accusatory witnesses may be satisfied absent a physical face-to-face confrontation at trial only where the denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”1 id. at 850. Specifically, the Court held in Craig, that a child may testify via one-way closed circuit television provided: (1) it was necessary to protect his or her welfare; (2) that the presence of the defendant would traumatize the child; and (3) that the impact of emotional distress on the child would be more than de minimis. Id. at 855-856.

¶ 8 In addition to courts holding that closed circuit testimony of child victims does not violate the Confrontation Clause, over half of the states in the country have passed statutes to allow the use of some type of closed circuit testimony for child victims. Id. at 853-54. In fact, Montana has enacted MCA §§ 46-16-226 through 46-16-229, which allows a child witness to testify outside the presence of a criminal defendant. Congress has also passed the Child Victims’ and Witnesses’ Rights statute, 18 U.S.C. § 3509, which allows for child victims to testify via two-way closed-circuit television in federal trials.

¶ 9 Similarly, the Fort Peck Comprehensive Code of Justice (CCOJ) provides criminal defendants with a right to be confronted with witnesses against them. 6 CCOJ 501. Tribal law supports that right by requiring, that “[a]ll testimony of witnesses shall be given orally under oath in open court and subject to the right of cross-examination.” 6 CCOJ 506. In this matter, the Tribes appropriately filed a pre-trial motion to request the testimony of the child victim via closed-circuit camera. The Prosecution’s motion requested that the child testify in the “back court room” of the Tribal Court away from the defendant. The child’s testimony was provided orally under oath and was subject to Appellant’s cross-examination. We find that these accommodations meet the requirements of the Confrontation Clause’s central purpose to ensure the reliability of the evidence and meet the criteria set forth in Craig while providing an alternative to minimize trauma to a child. Therefore, Appellant’s right to confrontation was satisfied here even absent a physical face-to-face confrontation.

¶ 10 The Tribal Court granted the Tribes’ pre-trial motion requesting the victim in this matter be allowed to testify via closed circuit television. In the future, the Tribal Court should appropriately set out in its findings that the Tribe has demonstrated the criteria that should be satisfied when allowing an alternative to face-to-face confrontation, including the need to protect the welfare of the child, that the child would be traumatized by having to testify in front of the defendant, and that the child would suffer emotion distress if the motion were not granted. While these factors all appear to be common sense inferences from “the nature of the charge,” to ensure development of the record the Court should issue an order setting out the specific findings in the future.

¶ 11 While this Court questions the basis of the opinion in Terry Dolezilek v. Fort Peck Tribes, APP 195 under entirely different facts that appear to be concerning, we do not rely on that precedent in our ruling here. The facts in Dolezilek, which include the introduction of a pre-recorded statement of the victim coupled with a lack of under oath testimony subject to cross-examination, appear to be a clear violation of the right to confrontation and therefore we hereby overrule that case.

¶ 12 For the reasons stated above, this Court holds that Appellant’s constitutional right to confrontation was not violated by the Tribal Court.

 

II. The Tribal Court did not violate Appellant’s right to due process when the Tribes did not call witnesses with potential exculpatory information to testify at trial.

¶ 13 The Appellant further argues that his rights were violated when the Tribes failed to call expert witnesses that submitted reports contained in discovery that identify a different perpetrator. The Tribes have the discretion to call whichever witnesses they choose at the trial to prove their case. They are not bound by any potential witnesses identified on a charging document. Further, the Defendant has the right to call witnesses as well. The ICRA, 25 U.S.C. § 1302(a)(6), states that a defendant cannot be denied “compulsory process for obtaining witnesses in his favor.” Indeed, if Appellant knew that certain witnesses had exculpatory information about his case, he should have called those witnesses himself. In the event the witnesses were not available because Appellant believed that the Tribes would call them, Appellant had the ability to indicate to the Court that he would call them and request a continuance to secure their appearance.

¶ 14 For the reason stated above, this Court finds that the Tribal Court did not violate Appellant’s right to due process when the Tribes did not call certain witnesses at trial due to the Defendant’s right to call those witnesses himself.

¶ 15 THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Tribal Court Judgment is AFFIRMED.

All Citations
--- Am. Tribal Law ----, 2025 WL 435706

Footnotes
1	The Court emphasized the importance that the child provide testimony under oath, is subject to cross-examination, and is visible to the trier of fact so a judge or jury may observe the witness’s demeanor and evaluate his or her credibility. Craig, 497 U.S. at 845.