By Alejandro Alvarado
Swinomish Tribal Community v. 2002 BMW is a Swinomish Tribal Court decision issued in March 2022 involving a civil forfeiture proceeding where the property owner challenges the tribe’s petition for forfeiture under the “excessive fines” clause of the Indian Civil Rights Act (ICRA). In this case, the Swinomish Tribal Court adopts a balancing test from the Indiana Supreme Court to determine whether the punitive value of the forfeiture violates ICRA’s “excessive fines” clause. Additionally, the court provides guidance to determine the value of the forfeited property and decides that the property owner has the burden of proof when arguing that the forfeiture violates the “excessive fines” clause under ICRA.
Facts and Background
A civil forfeiture is the legal process that allows governments, typically through law enforcement, to seize and then keep or sell property that is allegedly involved in criminal or illegal activity. The facts of this case were disputed by the parties at the time of the decision. However, the Court accepted as true the allegations contained in the Tribe’s Petition for Forfeiture and presumed that the search and seizure of the vehicle at issue was permissible.
On June 3, 2021, the 2002 BMW (hereafter “vehicle”) owned by San Juanita Lozano was searched and seized by the Swinomish Tribe. Lozano’s son-in-law was driving the vehicle when various amounts of heroin, methamphetamine, cocaine, pills containing acetaminophen, and a cutting agent were found. Under Swinomish Tribal Code STC 4-10.050, the Tribe filed a notice of seizure and intention to institute forfeiture proceedings against Lozano on June 11, 2021.
On August 5, 2021, the Tribe filed a Motion for Summary Judgment alleging the vehicle was right for forfeiture under STC 4-10.050. Although Lozano (hereinafter Respondent) failed to file a formal response, she submitted a letter providing that she had no knowledge of the criminal activity and explained the hardship she would suffer should the vehicle be forfeited to the Tribe. Swinomish Defense Services filed an Amicus brief arguing for the prohibition of excessive fines under ICRA. The trial court accepted the Amicus brief – a decision affirmed by the Swinomish Court of Appeals. For this decision, the “matter came before the Court on the Respondent’s Motion to permit her to argue to deny the Tribe’s Petition for Civil Forfeiture . . . on the grounds the forfeiture would be an “excessive fine” in violation of [ICRA].”
Issues & Holding
In Swinomish Tribal Community, the Swinomish Tribal Court addressed the following issues:
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?
For the first issue, the Court determined that “actions prosecuted under the Swinomish Tribe’s civil forfeiture statute are limited by the Indian Civil Rights Act prohibition against excessive fines.”
For the second issue, the Court held that “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 the circumstances of the underlying offense.”
Lastly, regarding the third issue, the Court determined that “the owner of the property subject to forfeiture bears the burden of proving that loss of the property would amount to an excessive fine.”
Relevant Law and Analysis
Swinomish Tribal Law uses civil forfeiture as a punitive measure, and it does not provide an innocent owner defense against these procedures. Federal court decisions “have limited tribes from exercising their inherent jurisdiction to prosecute all crimes committed within reservation boundaries . . . tribes are left to other measures to protect the health and safety of [tribal] communities.” Swinomish Tribal Code at STC 4-10.050 outlines the Tribe’s Seizure of Vehicles Used in Controlled Substances Violations. The statute describes the Tribe’s interest in forfeiting vehicles used in this capacity, as well as the process for tribal police and the tribal court to forfeit such vehicles. The Court in this case determined that due to the role of forfeiture code within the Swinomish Tribe, STC 4-10.050 “must be seen as primarily punitive and thus subject to the limitations of ICRA.” Swinomish Tribal Court precedent established that STC 4-10.050 does not provide for an innocent owner defense. The void for an innocent owner defense establishes that the vehicle owner’s lack of knowledge “of the vehicle’s use in criminal conduct does not prevent the Tribe from seeking forfeiture of the vehicle.”
I. The ICRA “excessive fines” clause provides an applicable defense to civil forfeiture proceedings because it mirrors the Eighth Amendment of the U.S. Constitution and it is not contrary to the Tribe’s unique history, customs, and practices.
The decision in Swinomish Tribal Community is a prime example of the interaction between tribal law and federal law. The Indian Civil Rights Act states that “No Indian tribe in exercising powers of self-government shall … require excessive bail, impose excessive fines, or inflict cruel and unusual punishments.” Swinomish Tribal Court precedent established that “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.” However, the Swinomish Tribal Court is not bound to adopt federal case law if its application “is contrary to the Tribe’s unique history, customs and practices.” This decision does not discuss whether protection against excessive fines is contrary to the Swinomish Tribe’s unique history, customs, and practices, other than noting that no arguments were brought forth by the parties to present the existence of such contrast.
Here, the Swinomish Tribal Court found that the language from the ICRA at 25 U.S.C. § 1302(a)(7)(A) mirrors that of the Eighth Amendment of the United States Constitution. As a result, the Swinomish Tribal Court referred to U.S. v. Austin, the leading Supreme Court case regarding the application of the Eighth Amendment’s excessive fines clause to civil forfeiture proceedings, in deciding the present case. In Austin, the Supreme Court found that a fine is at the very least partial punishment when the civil forfeiture is tied to the use of property in a criminal drug offense. Therefore, the fine must not be excessive in order for it to be constitutional under the Eighth Amendment. Because the facts in Austin involved the innocent owner defense that does not exist in the Swinomish Tribal Code, the Court in this case noted that the purpose of forfeiture law, whether the defense exists or not, is to “induce owners to exercise greater care in transferring possession of their property.” Relying on Austin, the Court concluded that the “excessive fines” clause of ICRA provides an applicable defense to civil forfeiture proceedings because the present case involves an owner who should have known her property might be used for criminal drug activity and drugs that harm the tribal community.  Thus, forfeiture of the vehicle will discourage property owners in the Respondent’s position from transferring the property to be used in that nature. Consequently, the cause of action presented the exact type of activity and punishment that requires the relationship between forfeiture and ICRA to be reviewed.
II. The Swinomish Tribal Court adopts the Timbs II Proportionality Test to examine whether the forfeiture amounts to an excessive fine.
In the present case, the Court accepted the parties’ joint recommendation to adopt the proportionality test established by the Indiana Supreme Court in State v. Timbs. The balancing test provided by this Indiana Supreme Court decision reviews the following factors to determine whether a civil forfeiture violates the Eighth Amendment’s “excessive fine” clause: (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. Additionally, the Swinomish Tribal Court clarifies that under the totality of the circumstances, the court must decide if the punitive value of the forfeiture is grossly disproportional to the gravity of the underlying offense(s) and the owner’s culpability.
The Swinomish Tribal Court rejected the Tribe’s arguments to omit the owner’s culpability analysis based on the lack of an innocent owner defense under Swinomish Tribal Code. Instead, the Court held that the owner’s lack of culpability is important to weigh the proportionality of the forfeiture, and that the court will give greater weight to the “highly culpable” owner. By considering the owner’s culpability, the innocent owner defense is partially incorporated into the analysis as a mitigating factor instead of an established defense against civil forfeiture.
III. The property owner bears the burden of proving that a requested forfeiture is impermissibly excessive because the value of the forfeiture is relative to the owner’s economic means.
The Court established that determining the value of the property subject to civil forfeiture under the second factor of the proportionality test can be determined by an objective market value of the property or a subjective value of the property to its owner.  Here, the Court relied on the first Timbs decision and reasoned that the subjective value of the property to the owner may be proper because “taking away the same, piece of property from a billionaire and from someone who owns nothing” is not an equal punishment. The Court further found that placing the burden of proving that a forfeiture is an excessive fine is supported by law.
In its decision, the Court states that “civil penalties, including forfeiture of property, provide tribes with mechanisms to enforce or discourage conduct within tribal lands by non-indians.” Despite not fitting neatly within the issues expressed by this decision, this statement has the potential to influence future case law and legislation within the Swinomish Tribal Community, as well as that of other tribes.
Overall, this decision provides guidance with regard to (1) the role of civil forfeiture penalties in tribal communities; (2) the proportionality test used to determine when a civil forfeiture action violates the “excessive fines” clause under ICRA; and (3) outlining the burden of proof imposed upon the property owner that challenges a civil forfeiture action. The holdings in this case will provide guidance for future cases that arise within the Swinomish Tribal Courts and may also be persuasive authority for courts of other Tribal communities. Specifically, the Court’s interpretation of the relationship between the Eighth Amendment of the U.S. Constitution, ICRA, and local Tribal codes provides helpful insight to the complex relationships between these jurisdictions.
 Wex Definitions Team, civil forfeiture, Cornell Law School Legal Information Institute [LII], https://www.law.cornell.edu/wex/civil_forfeiture (last updated August 2022). See Swinomish Tribal Code, STC 4-10.050.
 Swinomish Tribal Cmty. v. 2002 BMW, No. CVCF-2021-0015, 2022 WL 3723225, at *1 (Swinomish Tribal Ct. Mar. 1, 2022).
 Swinomish Tribal Cmty., 2022 WL 3723225, at *1.
 Id. at *2 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).
 Swinomish Tribal Code, STC 4-10.050(A) – (F).
 Swinomish Tribal Cmty., 2022 WL 3723225, at *2.
 See Swinomish Tribal Code, STC 4-10.050, Annotations (citing In re 1999 Ford Escort 500-VEX, CVFF-2011-0013 (Swinomish Tribal Ct. July 18, 2011)).
 Swinomish Tribal Cmty., 2022 WL 3723225, at *2.
 25 U.S.C. § 1302(a)(7)(A).
 Swinomish Tribal Cmty., 2022 WL 3723225, at *1 (citing SITC v. Reid, CRCO-2011-0079 (March 2012)).
 Swinomish Tribal Cmty., 2022 WL 3723225, at *1 (citing SITC v. Stone, CRCO-2004-0324 (JAN 30, 2007)).
 Id. at *2.
 Id. at *1.
 U.S. v. Austin, 509 U.S. 602, 602-03 (1993); Swinomish Tribal Cmty., 2022 WL 3723225, at *2.
 Austin, 509 U.S. 602 at 602-03.
 Swinomish Tribal Cmty., 2022 WL 3723225, at *2.
 State v. Timbs, 169 N.E.3d 361 (Ind. 2021) [hereinafter Timbs II]; Swinomish Tribal Cmty., 2022 WL 3723225, at *3.
 State v. Timbs, 134 N.E.3d 12, 36 (Ind. 2019).
 Swinomish Tribal Cmty., 2022 WL 3723225, at *3.
 Id. at *2.