--- Am. Tribal Law ----, 2018 WL 8224947 (Swinomish Tribal Ct.)
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Swinomish Tribal Court.
Nikaya L. PETERS., Defendant
Swinomish Tribal Community, Plaintiff,
Tyrone McLeod, Defendant,
Case No.: CRCO-2018-0009
DATED this October 29, 2018.


Memorandum Opinion
Mark W. Pouley, Chief Judge Swinomish Tribal Court

THESE MATTERS came on before the Court on the Plaintiff’s Motion RE: The Admissibility of Sworn Victim Statements. The Court heard oral argument and rendered an oral decision on October 25, 2018. This is a memorandum of that oral opinion.



The two above captioned cases were consolidated for this motion because they share the same legal question. While the majority of facts differ in each case, they share key facts relevant to the decision of this motion.

In both cases, the Defendant is charged with a domestic violence assault. In both cases, the alleged victim gave sworn statements to the Swinomish Tribal Police very shortly after the alleged assault occurred. The statement was provided to the Defendant during the normal course of discovery. The details of the offensive conduct are not material to the issue presented here and will not be recited in this opinion. The tribe has not presented facts suggesting that the victims are unavailable to testify at trial, but asks that they not be required to do so.



May the tribe introduce sworn written statements from an alleged victim at trial in lieu of live testimony if the culture and tradition of the Swinomish Tribe supports a victim’s desire not to confront the perpetrator of the crime?


The question before the court squarely pits a historic value of the Swinomish people, non-confrontation within the community, against the confrontation clause of the U.S. Constitution and the Indian Civil Right Act. For the reasons that follow, the Court upholds the confrontation clause to protect the rights of the Defendant and therefore DENIES the tribe’s motion.

Tribes are not bound by the U.S. Constitution including the “Bill of Rights.” Congress addressed this, providing certain rights to citizens of tribal nations, by passing the Indian Civil Rights Act (ICRA). Several provisions of ICRA clearly differ from the U.S. Constitution in recognition of the unique nature of tribes and to respect their sovereignty. For instance, tribes are not prevented from having a government established religion because many tribes not only have established religions, but some tribal governments are composed by their religious leaders. Similar, as originally written, ICRA does not require tribes to provide appointed defense counsel because some tribes do not have the resources to do so.

The 6th Amendment of U.S. Constitution guarantees the right of criminal defendants “to be confronted with the witnesses against him.” The Indian Civil Rights Act at 25 U.S.C.A. § 1302 (a)(6), prevents the tribe from denying “to any person in a criminal proceeding the right ... to be confronted with the witnesses against him ...” The ICRA prohibition is identical to that found in the Sixth Amendment of the U.S. Constitution. While tribes are not generally bound by Federal and state court’s interpretations of the provisions and protections of the U.S. Constitution, where the language of the Indian Civil Rights Act is identical to protections afforded by the Bill of Rights, the tribal court must closely follow the precedent set by these other courts. In this case, the language of the “confrontation clause” in the Sixth Amendment and the ICRA are identical and the rulings of the U.S. Supreme Court are controlling.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) the Court held that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” In the subsequent consolidated cases of Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) the Court applied this decision to the circumstances of testimony of domestic violence victims. While the historical analysis of the development of the right to confrontation of witnesses in England bears little weight in the development of rights and responsibilities on the Swinomish Indian Reservation, the conclusions of the court are sound and will be followed.

The tribe cites the book “A Gathering of Wisdoms, Tribal Mental Health: A Cultural Perspective”, Second Addition (2002) to inform the court of the culture and history of the Swinomish community. In sum, the tribe contends that one of the values of the tribal community is to “be loyal to your family members” and a traditional value of non-direct interference with other’s behavior as opposed to direct confrontation. As a result, and put in terms of giving testimony at trial, a victim “may be unavailable to testify due to Swinomish societal norms, obligations and unspoken rules.” (quoting the tribe’s brief in support of the motion) The Defendant does not challenge the basic premises presented by the tribe and the court has no basis to discount the validity of the history and culture offered. That said, the court must balance the stated cultural norm with the very clear requirements of the confrontation clause.

The U.S. Constitution and I.C.R.A. expressly grant defendant’s the right to confront the person accusing them of a crime. In its most simply terms, this right requires the witness to testify in person and subject to cross-examination by the defendant. The right to confront witnesses is one of the most guarded rights of due process. Exceptions to the confrontation clause are few and narrowly drawn. The tribe’s proposed rule would allow the testimony of any crime victim to be presented in writing, and not subject to cross-examination. The only condition would be that the statement was sworn and given to the police in a time sufficiently close to occurrence of the crime to offer some indicia of reliability. Such a rule is simply too broad and nearly eliminates the defendant’s right of confrontation entirely. It is not possible to adopt the proposed rule and still recognize the protections afforded by ICRA, even if the court found that ICRA gave tribes more latitude then the Sixth Amendment protections of the U.S. Constitution.

The court is not rejecting tribal custom or suggesting that Western principles of due process should be imposed on the tribe in violation of its sovereign right to provide for the peace and safety of the tribal community. The tribe itself has conducted this balancing test and directed the court to the holding made in this matter.

The Swinomish Tribal Court was established by ordinance in approximately 1935. The modern court and retrocession of criminal jurisdiction from Washington state occurred in 1988.1 As established, and in practice, the Swinomish Tribal Court is modeled after the western court system. The Rules of Criminal Procedure adopted by the Tribe explicitly create obligations of the court and the tribe to protect defendants and provide due process in line with rules established in western courts and in some cases expressly going beyond ICRA requirements.2 In 2017 the Swinomish community adopted Article IX of the Swinomish Constitution adopting the tribal court as a separate and independent branch of government.

The U.S. Congress recognized tribes’ enhanced sentencing authority in the 2010 Tribal Law and Order Act (TOLA) and enhanced jurisdiction to prosecute non-Indian domestic violence perpetrators in the 2013 Violence Against Women Act reauthorization (VAWA). The enhanced authority is recognized only if tribes guarantee fundamental rights of due process. For instance, appointed counsel is now a requirement under TOLA and VAWA. Additionally, VAWA requires tribes that choose to prosecute non-Indian defendants for crimes of domestic violence to provide defendants “all other rights whose protection is necessary under the Constitution of the United States ....”3 The court takes judicial notice that the Swinomish Tribe has elected to take the steps necessary to enhance the sentencing authority and criminal jurisdiction of the court as recognized by TOLA and VAWA4.

Looking at the past, present and future, the Swinomish tribe has moved deliberately and clearly in the development of the court and the protection of defendant’s right to due process. This court finds no basis to support the proposal that it should reject the clear intentions and movement of the tribe even if there were evidence that the U.S. Constitutional right of confrontation is in direct conflict with the tribe’s historical culture and traditions.

As presented in this motion, the court will not allow the written statements of the alleged victims to be offered at trial in lieu of their live testimony subject to cross-examination by the Defendant.

All Citations
--- Am. Tribal Law ----, 2018 WL 8224947



See, Legislative history of Title 3, Chapter 1 of the Swinomish Tribal Code. “Establishment and Authority of the Tribal Court”




25 U.S.C.A. § 1304(d)(4)


To be clear, the holding in this case would be the same regardless of the Swinomish tribe’s decision to move toward the enhanced sentencing and prosecutorial authority, because the language of ICRA and the Sixth Amendment are identical.