Jessica Tavares v. Gene Whitehouse
2017 WL 971799, 2017 U.S. App. LEXIS 4427, 851 F.3d 863 (2017)
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Rule of Law:
A temporary exclusion of a tribal member from certain tribal lands does not constitute a 'detention' under the Indian Civil Rights Act's habeas corpus provision, 25 U.S.C. § 1303. Therefore, federal courts lack subject matter jurisdiction to review such exclusion orders.
Facts:
- Jessica Tavares, Dolly Suehead, Donna Caesar, and Barbara Suehead were members of the United Auburn Indian Community (UAIC).
- Disagreeing with the UAIC Tribal Council's governance, the petitioners submitted a recall petition against its members, alleging financial mismanagement and electoral irregularities.
- The Tribe's Election Committee rejected the recall petition for failing to meet procedural requirements.
- The petitioners then circulated two press releases to mass media outlets, repeating their allegations against the Council.
- In response, the Tribal Council issued discipline notices to the petitioners for violating tribal ordinances against defamation and harming tribal programs.
- The Council immediately banned Tavares from tribal lands for ten years and the other petitioners for two years, preventing them from accessing tribal events, properties, offices, schools, and the casino.
- The exclusion orders did not bar the petitioners from their own homes or other privately owned parcels on the Ranchería, and they retained their tribal health care benefits.
- The Council also voted to withhold the petitioners' per capita financial distributions for set periods, a decision which was upheld after a hearing and appeal within the tribal system.
Procedural Posture:
- The petitioners filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of California against members of the UAIC Tribal Council.
- The district court dismissed the petition for lack of subject matter jurisdiction, concluding that the petitioners' punishment was not a 'detention' sufficient to invoke federal habeas jurisdiction under the ICRA.
- The petitioners appealed the district court's dismissal to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a temporary exclusion order issued by an Indian tribe against its members, which bars them from some tribal lands but not their homes, constitute a 'detention' sufficient to invoke federal habeas corpus jurisdiction under the Indian Civil Rights Act, 25 U.S.C. § 1303?
Opinions:
Majority - McKeown, J.
No. A temporary exclusion from some tribal land does not constitute a 'detention' under § 1303 of the Indian Civil Rights Act (ICRA), and therefore federal courts lack jurisdiction to hear a habeas petition challenging such an order. The court reasoned that Congress's choice to use the word 'detention' in the ICRA, rather than the broader term 'custody' found in general federal habeas statutes, was a deliberate and meaningful restriction. At the time the ICRA was enacted, 'detention' was commonly understood to require physical confinement, whereas 'custody' had been interpreted more expansively by the Supreme Court. Guided by the canons of construction in Indian law, which require interpreting ambiguous statutes in favor of tribal sovereignty, the court concluded that extending habeas jurisdiction to temporary exclusion orders would improperly entangle federal courts in internal tribal governance and membership matters, which are central to a tribe's sovereignty. The court distinguished this case from precedents involving permanent banishment, which entailed more severe restraints on liberty.
Concurring-in-part-and-dissenting-in-part - Wardlaw, J.
Yes. A ten-year banishment order is a severe restraint on liberty that constitutes a 'detention' under the Indian Civil Rights Act (ICRA). The dissent argued that Ninth Circuit precedent requires interpreting 'detention' under the ICRA similarly to the 'in custody' requirement of general habeas law, which has been liberally construed to include any significant restraint on liberty not shared by the general public. The ten-year banishment of Tavares from her tribal homeland—preventing her from participating in cultural life, attending tribal meetings, and visiting family on tribal land—is a severe restraint on her physical liberty. The majority's holding, which creates a distinction between 'detention' and 'custody,' splits from other circuits and ignores binding precedent. Furthermore, the distinction between a 'temporary' and 'permanent' banishment is legally irrelevant to the fact of detention and creates a perverse incentive for tribes to use long-term 'temporary' exclusions to evade the sole federal remedy Congress provided for ICRA violations.
Analysis:
This decision significantly narrows the scope of federal habeas jurisdiction under the Indian Civil Rights Act within the Ninth Circuit, creating a potential circuit split. By distinguishing 'detention' from the broader concept of 'custody,' the court elevates the principle of tribal sovereignty over the availability of a federal forum for individual rights claims that do not involve physical confinement. This ruling makes it more difficult for tribal members to challenge non-carceral disciplinary actions, such as temporary exclusion or banishment, in federal court, effectively directing such disputes back to tribal forums. Future litigation will likely focus on the line between a 'temporary exclusion' not subject to federal review and a 'permanent banishment' that might be.
