Jessica Tavares v. Gene Whitehouse , 851 F.3d 863 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA TAVARES; DOLLY No. 14-15814
SUEHEAD; DONNA CAESAR;
BARBARA SUEHEAD, D.C. No.
Petitioners-Appellants, 2:13-cv-02101-TLN-CKD
v.
OPINION
GENE WHITEHOUSE; CALVIN
MOMAN; BRENDA ADAMS;
JOHN WILLIAMS; DANNY
REY, in their official
capacity as members of the
Tribal Council of the United
Auburn Indian Community,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted March 15, 2016
San Francisco, California
Filed March 14, 2017
Before: M. Margaret McKeown, Kim McLane Wardlaw,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge McKeown
Partial Concurrence and Partial Dissent by Judge Wardlaw
2 TAVARES V. WHITEHOUSE
SUMMARY*
Indian Civil Rights Act
The panel affirmed the district court’s dismissal for lack
of jurisdiction of a habeas corpus petition brought under the
Indian Civil Rights Act and dismissed three petitioners’
appeals as moot.
The panel held that a tribe’s temporary exclusion of its
own members from tribal land, but not the entire reservation,
did not constitute a “detention” under 25 U.S.C. § 1303, and
the district court therefore lacked jurisdiction to review the
tribal members’ temporary exclusion claim. The panel held
that the withholding of the petitioners’ per capita tribal
distributions also did not create habeas jurisdiction under the
ICRA.
The panel dismissed on mootness grounds the appeal of
three petitioners whose exclusion orders had expired.
Concurring in part and dissenting in part, Judge Wardlaw
agreed with the majority that the court lacked habeas
jurisdiction over the withholding orders and that the appeals
of three petitioners should be dismissed as moot. Judge
Wardlaw concluded, however, that the fourth petitioner’s ten-
year banishment order severely restrained her liberty and
constituted “detention” under the ICRA.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TAVARES V. WHITEHOUSE 3
COUNSEL
Andrew W. Stroud (argued) and Landon D. Bailey, Hanson
Bridgett LLP, Sacramento, California; Fred J. Hiestand, Esq.,
Sacramento, California; for Petitioners-Appellants.
Elliot R. Peters (argued), Steven A. Hirsch, Jo W. Golub, and
Jesse Basbaum, Keker & Van Nest LLP, San Francisco,
California, for Respondents-Appellees.
OPINION
McKEOWN, Circuit Judge:
This appeal tests the limits of federal court jurisdiction to
hear a habeas petition brought under the Indian Civil Rights
Act (“ICRA”), 25 U.S.C. §§ 1301–1303, where the
underlying claim arises not from an actual detention or
imprisonment, but instead from a tribe’s temporary exclusion
of its own members.1
Congress enacted the ICRA in 1968 in response to a “long
line” of federal court decisions exempting Indian tribes from
constitutional restraints. See Cohen’s Handbook of Federal
Indian Law § 1.07, at 97 (Nell Jessup Newton ed., 2012)
[Cohen’s]; see also Michigan v. Bay Mills Indian Cmty., 134
1
The parties dispute whether the petitioners were temporarily
“banished” or temporarily “excluded.” We use the term “exclusion,” but
ascribe no special significance to the word. See Patrice H. Kunesh,
Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37
N.M. L. Rev. 85, 88 n.17 (noting that “exclusion” and “banishment” are
often used interchangeably).
4 TAVARES V. WHITEHOUSE
S. Ct. 2024, 2030, 2037 (2014) (noting that Indian tribes
possess a “special brand of sovereignty” that predates, and is
consequently not bound by, the Constitution). The Act
extended to tribes most (but not all) of the civil protections in
the Bill of Rights. See David H. Getches et al., Federal
Indian Law 380–81 (6th ed. 2011). The ICRA created a new
federal habeas remedy “to test the legality of . . . detention by
order of an Indian tribe.” 25 U.S.C. § 1303. Because § 1303
provides the exclusive federal remedy for tribal violations of
the ICRA, unless a petitioner is in “detention by order of an
Indian tribe,” the federal courts lack jurisdiction over an
ICRA challenge and the complaint must be brought in tribal
court. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65,
67 (1978).
The question here is whether a temporary exclusion from
tribal land, but not the entire reservation, constitutes a
detention under the ICRA. Reading the ICRA’s habeas
provision in light of the Indian canons of construction and
Congress’s plenary authority to limit tribal sovereignty, we
hold that the district court lacked jurisdiction under § 1303 of
the ICRA to review this temporary exclusion claim.
BACKGROUND
Before the first Europeans arrived in California, as many
as 350,000 Indians lived within the state’s borders, speaking
up to eighty different languages. S. Rep. No. 103-340, at 1
(1994). By the time Mexico ceded California to the United
States in 1848, the indigenous population had dropped to
approximately 150,000 people; by 1900, it had plummeted to
about 15,000. Id. at 1–2. This decline was not, of course,
unique to California, but instead mirrored the effects of
TAVARES V. WHITEHOUSE 5
disease, war, and removal policies on tribes across the
country.
One of the indigenous groups still in California at the turn
of the century was the Auburn Band, “a small, cohesive band
of Indians” that lived about forty miles outside of
Sacramento. Id. at 4. By 1953, the federal government had
acquired forty acres of land (the “Auburn Rancheria” or
“Rancheria”) in trust on the Band’s behalf. Id. But by the
mid-1950s, Congress adopted a policy of “assimilation
through termination,” Cohen’s § 1.06, at 85, and the Auburn
Rancheria was ultimately terminated in 1967. S. Rep. No.
103-340, at 5. As a result, “[R]ancheria lands formerly held
in tribal or community ownership” were divided and
distributed. H.R. Rep. No. 103-812, at 22 (1994).
The Tribe’s history is a microreflection of congressional
seesawing on tribal governance over the past century. The
so-called Termination Era of the 1950s saw Congress end the
“historic relationships” between specified tribes and the
federal government, defund federal tribal assistance
programs, and give named states civil and criminal
jurisdiction over individual Indians with an option for other
states to assume such jurisdiction. Cohen’s § 1.06, at 91. It
was in this context that the Rancheria was terminated.
But blowback to the “disastrous results” of termination
came swiftly, and by the 1960s, the federal government had
adopted a policy of strengthening tribal self-government and
self-determination. Id. § 1.07, at 94. This shift in focus led
Congress to “enact[] special acts restoring a substantial
number of previously terminated tribes,” id. § 1.07, at 97,
including the Auburn Indian Restoration Act in 1994, 25
U.S.C. § 1300l–1300l-7.
6 TAVARES V. WHITEHOUSE
Today, the historic Band is known as the United Auburn
Indian Community (“UAIC” or “Tribe”). The UAIC owns
twelve parcels of land on the historic Rancheria, including a
preschool, a community service center, foster homes, and
recreational facilities. It also owns off-Rancheria facilities,
including the Thunder Valley Casino Resort. The remaining
twenty-one parcels of land on the Rancheria are privately
owned, not tribally owned or controlled.
In keeping with the goals of current federal Indian policy,
the Tribe is self-governing. It is run by an elected five-
member Tribal Council, which enacts legislation and takes
executive action. The Council also disciplines tribal
members for civil violations of the Tribe’s constitution and
ordinances. Like many tribes today, the UAIC does not have
a criminal code and does not exercise criminal jurisdiction
over its members.
The Tribe adopted a constitution and bylaws, three of
which are particularly implicated by this appeal. Ordinance
2004-001 III(B) imposes a duty on all tribal members “to
refrain from damaging or harming tribal programs or filing of
false information in connection with a tribal program.”
Ordinance 2004-001 III(I) requires members to “refrain from
defaming the reputation of the Tribe, its officials, its
employees or agents outside of a tribal forum[.]” And the
Enrollment Ordinance provides that a Tribe member can be
punished—up to and including disenrollment—for making
misrepresentations against the Tribe.
This appeal arises out of actions taken by the Tribal
Council in 2011. Petitioners Jessica Tavares, Dolly Suehead,
Donna Caesar, and Barbara Suehead (collectively, “the
petitioners”) disagreed with how the Council was governing
TAVARES V. WHITEHOUSE 7
internal tribal affairs and, on November 7, 2011, they
submitted a recall petition to the Tribe’s Election
Committee.2 The recall petition raised a litany of allegations
against the members of the Council: financial
mismanagement, retaliation, electoral irregularity, denial of
due process, denial of access to an audit, and restrictions on
access to Tribe members’ mailing addresses. The Election
Committee rejected the recall petition after determining that
it did not have signatures from forty percent of tribal
members, some of the signatures were not notarized, and
some signatories did not provide a date and address, as
required by a tribal ordinance.3
Around the same time, the petitioners circulated to mass
media outlets two press releases detailing their complaints.
The first press release stated that the Council had engaged in
“questionable financial practices” and “cover-ups of financial
misdealings,” that the Council had “fraudulently” refused to
conduct a financial audit of the Tribe’s resources, and that the
Tribe’s elections were “dishonest and rigged.” After the
Election Committee denied the recall petition, the petitioners
circulated the second press release, which alleged that the
Council had “scuttle[d]” the petition.
2
Under the Tribe’s constitution, “[u]pon receipt of a petition signed
by at least forty percent (40%) of the qualified voters of the [UAIC], it
shall be the duty of the Election Committee established by this
Constitution to call and conduct within thirty (30) days an election to
consider the recall of an elected official.”
3
The petitioners claim that the petition did in fact have signatures
from forty percent of the Tribe and that they had no notice of the other
requirements. This dispute is not before us; we take no position on which
version of the facts is true.
8 TAVARES V. WHITEHOUSE
Four days after the recall petition was rejected, the
Council sent each petitioner a Notice of Discipline and
Proposed Withholding of Per Capita. The Notices stated that
the petitioners’ press releases “contained numerous
inaccurate, false and defamatory statements” that wound up
being published in non-tribal news outlets like the
Sacramento Bee. The Notices informed the petitioners that,
through the press releases, the petitioners had “[r]epeatedly
libel[ed] and slander[ed] the Tribe and its agents maliciously
and in disregard of the truth in non-tribal forums” and had
taken “[h]armful and damaging actions to tribal programs,
specifically our tribal businesses and government, and
provid[ed] outsiders with false information about tribal
programs,” in violation of tribal law. The Notices also stated
that the Council had voted to withhold the petitioners’ per
capita distributions and to ban them temporarily from tribal
lands and facilities.
The exclusion orders were effective immediately. The
petitioners were barred from tribal events, properties, offices,
schools, health and wellness facilities, a park, and the casino.
During their terms of exclusions, the petitioners could not run
for tribal office, but they could vote in tribal elections through
absentee ballots. They were not excluded from the twenty-
one privately owned parcels of land, including their own
homes and land owned by other members of the Tribe, and
they retained their tribal health care benefits. Tavares was
excluded for ten years, while the others were excluded for
two years. None of the petitioners had a right to a hearing or
an appeal on the exclusion orders.
The Notices also stated that the Council intended to
withhold the petitioners’ “per capita distributions and all
other financial benefits and membership privileges,”
TAVARES V. WHITEHOUSE 9
excluding health care benefits, for four years (as to Tavares)
and six months (as to the others). Unlike the exclusion
orders, the withholding orders were not effective
immediately. Instead, the petitioners were entitled to a
hearing before the Council and to an appeal. The Council
confirmed the proposed suspension of the petitioners’ per
capita distributions after a hearing.
On appeal, the Appeals Board affirmed the Council’s
findings and actions in a thirty-page thoroughly-reasoned
decision. It rejected the petitioners’ constitutional challenge
to the Tribe’s anti-defamation ordinance on three grounds: (1)
the petitioners’ arguments “ignore[d] entirely federal Indian
law,” (2) the ordinance “d[id] not violate the Tribe’s
Constitution,” and (3) the ordinance satisfied federal
constitutional standards. The Appeals Board affirmed the
Council’s finding that the petitioners had violated tribal law,
concluding that the press releases “sounded a loud (and
inaccurate) warning bell to [local businesses and
governments] that decisions made by our Tribe and casino
may not be reliable, and even illegal, and that our Tribe and
casino may not be a stable partner for business or even
accepting a donation.” According to the Appeals Board, the
petitioners’ “sensationalized publicity stunt . . . harms the
Tribe, its government infrastructure, its business activities
. . . , and the future of tribal members. It has been our tribal
custom and tradition to protect this Tribe and its institutions
from the harm caused by this type of defamation outside the
tribal forum. Our ability to be taken seriously as a tribal
government and business partner depends on it.”
The Appeals Board concluded that the length of the
original withholding orders was fair, but acknowledged the
unique cultural factors at play: “We, as tribal members, have
10 TAVARES V. WHITEHOUSE
distrust of authority bred into us, after centuries of broken
promises. We also are concerned about each individual
appellant here, who all have families. We are a Tribe
composed of a few extended families. Each of us has
dependents who we care for. The culture and tradition of this
Tribe has been to take care of each other.” Thus, “after
reflection on and discussion about our tribal customs and
traditions and values,” the Appeals Board reduced Tavares’
per capita withholding by six months (making her ultimate
withholding sanction total three-and-a-half years) and the
other petitioners’ per capita withholding by one month
(making their withholding sanctions total five months).4
The petitioners filed a petition for a writ of habeas corpus
in federal court under 25 U.S.C. § 1303 of the ICRA against
the members of the Council.5 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.
4
As to petitioners Dolly Suehead, Donna Caesar, and Barbara
Suehead, the exclusion orders expired on November 15, 2013 and the per
capita withholding orders expired on May 1, 2012.
5
Gene Whitehouse, Brenda Adams, and Calvin Moman were
members of both the 2011 and 2013 Councils. John Williams and Danny
Rey were members only of the 2013 Council.
TAVARES V. WHITEHOUSE 11
ANALYSIS
I. Principles Animating Habeas Jurisdiction Under
§ 1303 of the Indian Civil Rights Act
We ground our opinion in two foundational principles in
the Indian law canon—tribal sovereignty and congressional
primacy in Indian affairs. We have long recognized that
Indian tribes are “distinct, independent political communities,
retaining their original natural rights.” Worcester v. Georgia,
31 U.S. (6 Pet.) 515, 559 (1832). While tribes lack “the full
attributes of sovereignty,” they retain the power of self-
government. United States v. Kagama, 118 U.S. 375, 381–82
(1886). Tribal sovereignty offers “a backdrop against which
the applicable . . . federal statutes must be read.”
McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 172
(1973). In other words, to the extent a statute is ambiguous,
we construe it liberally in favor of the tribes’ inherent
authority to self-govern. See, e.g., Ramah Navajo Sch. Bd.,
Inc. v. Bureau of Revenue, 458 U.S. 832, 846 (1982) (“We
have consistently admonished that federal statutes and
regulations relating to tribes . . . must be ‘construed
generously in order to comport with . . . traditional notions of
[Indian] sovereignty and with the federal policy of
encouraging tribal independence.’” (first alteration added)
(quoting White Mountain Apache Tribe v. Bracker, 448 U.S.
136, 144 (1980))).
A second well-recognized principle is Congress’s
“constitutionally prescribed primacy in Indian affairs.”
Cohen’s § 2.01[1], at 110; see also Washington v.
Confederated Bands & Tribes of Yakima Indian Nation, 439
U.S. 463, 470–71 (1979) (describing Congress’s authority
over Indian affairs as “plenary and exclusive”). Because
12 TAVARES V. WHITEHOUSE
Congress’s jurisdiction is plenary, our jurisdiction is
correspondingly narrow. See Lone Wolf v. Hitchcock, 187
U.S. 553, 565 (1903) (“Plenary authority over the tribal
relations of the Indians has been exercised by Congress from
the beginning, and the power has always been deemed a
political one, not subject to be controlled by the judicial
department of the government.”). Hence, we refrain from
interpreting federal statutes in a way that limits tribal
autonomy unless there are “clear indications” that Congress
intended to do so. Santa Clara Pueblo, 436 U.S. at 60.
Because Indian tribes have sovereignty that predates the
Constitution, they are not subject to the constitutional
restraints that bind the federal government and the states. See
Talton v. Mayes, 163 U.S. 376, 382–84 (1896). Congress
can, however, impose such restraints by statute as part of its
plenary authority over tribal affairs. In 1968, Congress
exercised this authority and enacted the ICRA, which extends
much of the Bill of Rights to tribes by statute.6 The ICRA
also contains an explicit federal habeas remedy: “The
privilege of the writ of habeas corpus shall be available to any
person, in a court of the United States, to test the legality of
his detention by order of an Indian tribe.” 25 U.S.C. § 1303.
The Supreme Court first analyzed the scope of federal
court jurisdiction under the ICRA in Santa Clara Pueblo, 436
U.S. 49. The Court held that the ICRA’s substantive rights
(contained in § 1302 of the statute) did not imply a federal
6
The rights in the ICRA are similar, but not identical, to those
contained in the Bill of Rights. For example, the statute has no
requirement that tribes provide free counsel for indigent criminal
defendants in tribal court. See United States v. Bryant, 136 S. Ct. 1954,
1958–59 (2016).
TAVARES V. WHITEHOUSE 13
remedy; instead, § 1303 set out the exclusive remedy for
violations of the ICRA—a writ of habeas corpus “in a Court
of the United States.” Id. at 69–72. As part of its analysis,
the Court noted that one of the primary purposes in enacting
the ICRA was to “promote the well-established federal policy
of furthering Indian self-government.” Id. at 62 (citations and
internal quotation marks omitted). Although the Court
recognized that Congress also intended to “strengthen[] the
position of individual tribal members vis-à-vis the tribe,” it
concluded that finding an implied cause of action would
strengthen this goal only at the expense of tribal sovereignty.
Id. In sum, federal remedies beyond habeas were “not plainly
required to give effect to Congress’ objective[s].” Id. at 65.
With these principles in mind, we address whether the district
court had habeas jurisdiction over the per capita withholding
or the temporary exclusion orders.
II. Per Capita Withholding Orders
As a threshold matter, we quickly dispose of the argument
that the petitioners’ per capita withholding orders created
habeas jurisdiction under the ICRA.7
In Shenandoah v. U.S. Department of the Interior, the
Second Circuit explained that the loss of quarterly
distributions paid to all tribal members is “insufficient to
bring plaintiffs within ICRA’s habeas provision,” 159 F.3d
708, 714 (2d Cir. 1998), a determination that we cited with
approval in Jeffredo v. Macarro. 599 F.3d 913, 919 (9th Cir.
2009). This conclusion falls squarely within the “general
7
Although it is not entirely clear in their briefs, the petitioners appear
to argue that withholding of distributions creates habeas jurisdiction in
whole or part. To the extent they raise this argument, we address it here.
14 TAVARES V. WHITEHOUSE
rule” that “federal habeas jurisdiction does not operate to
remedy economic restraints.” Shenandoah v. Halbritter, 366
F.3d 89, 92 (2d Cir. 2004); see also United States v. Thiele,
314 F.3d 399, 402 (9th Cir. 2002) (writing that cognizable
claims “do not run interference for non-cognizable claims”).
Any disputes about per capita payments must be brought in
a tribal forum, not through federal habeas proceedings. See
25 C.F.R. §290.23; Lewis v. Norton, 424 F.3d 959, 963 (9th
Cir. 2005).
III. Temporary Exclusion Orders
We now turn to the crux of this appeal—whether the
petitioners, who were temporarily excluded from tribal lands,
were in “detention” under § 1303 for purposes of federal
habeas jurisdiction.8
We start with the words Congress used in § 1303,
focusing on a difference between the language used in that
provision and the language used in the general federal habeas
statutes. When Congress enacted the ICRA in 1968, it was
legislating against a well-established habeas framework: the
federal courts have habeas jurisdiction whenever a petitioner
8
The two-year exclusion orders applicable to Dolly and Barbara
Suehead and Donna Caesar expired before briefing in this appeal was
completed and hence there is no longer a live controversy. Chafin v.
Chafin, 133 S. Ct. 1017, 1023 (2013). Even assuming habeas jurisdiction
were proper, petitioners’ suggestion that the expired orders had continuing
consequences in a habeas sense is totally speculative. Thus, we dismiss
their appeals on mootness grounds, and also affirm the district court’s
dismissal of their claims on jurisdictional grounds.
TAVARES V. WHITEHOUSE 15
is “in custody.” See 28 U.S.C. §§ 2241, 2255;9 see also Jones
v. Cunningham, 371 U.S. 236, 236 (1963) (quoting 28 U.S.C.
§ 2241); Judiciary Act of Sept. 24, 1789, § 14, 1 Stat. 73, 82.
Yet Congress chose not to incorporate this language into the
ICRA. Instead, under § 1303, habeas corpus is available only
to a person who wishes to “test the legality of his detention by
order of an Indian tribe.” In addition to the usual rule that
different words in a statute ordinarily convey different
meanings, S.E.C. v. McCarthy, 322 F.3d 650, 656 (9th Cir.
2003), we think Congress’s use of “detention” instead of
“custody” when it created habeas jurisdiction over tribal
actions is significant in multiple respects.
At the time Congress enacted the ICRA, “detention” was
generally understood to have a meaning distinct from and,
indeed, narrower than “custody.” Specifically, “detention”
was commonly defined to require physical confinement. See,
9
The requirement that a petitioner be “in custody” is stated in every
section of the statutory provisions for state and federal habeas jurisdiction.
See 28 U.S.C. §§ 2241(c)(1)–(4) (“The writ of habeas corpus shall not
extend to a prisoner unless — (1) He is in custody under or by color of the
authority of the United States or is committed for trial before some court
thereof; or (2) He is in custody for an act done or omitted in pursuance of
an Act of Congress, or an order, process, judgment or decree of a court or
judge of the United States; or (3) He is in custody in violation of the
Constitution or laws or treaties of the United States; or (4) He, being a
citizen of a foreign state and domiciled therein is in custody for an act
done or omitted under any alleged right, title, authority, privilege,
protection, or exemption claimed under the commission, order or sanction
of any foreign state, or under color thereof . . . .” (emphases added)),
2254(a) (rendering habeas relief available to “a person in custody pursuant
to the judgment of a State court”), 2255(a) (rendering motions to “vacate,
set aside or correct the sentence” available to “[a] prisoner in custody
under sentence of a court established by Act of Congress”).
16 TAVARES V. WHITEHOUSE
e.g., Preiser v. Rodriguez, 411 U.S. 475, 484–85 (1973)
(equating “detention” and “physical confinement”); see also
Ballentine’s Law Dictionary 343 (3d ed. 1969) (defining
“detention” as “[h]olding one arrested on a charge of crime”).
By contrast, “custody” had a more fluid definition: while it
meant “physical control of the person,” it did not require
physical confinement or imprisonment. Id. at 300. Instead,
a person was in custody for habeas purposes if there was
“restraint of [that] person by another [such] that the latter can
produce the body of the former at a hearing as directed by
writ or order.” Id. In other words, at the time of the ICRA’s
enactment, detention was understood as a subset of custody.
See also Black’s Law Dictionary 460 (4th ed. 1968) (defining
“custody” as encompassing “[d]etention; charge; control;
possession” and noting that “[t]he term is very elastic and
may mean actual imprisonment or physical detention or mere
power, legal or physical, of imprisoning or of taking manual
possession”).
It is also notable that Congress used “detention” at the
same time that the Supreme Court had begun to expand the
scope of “custody” in the federal habeas statutes. Courts
“normally assume that, when Congress enacts statutes, it is
aware of relevant judicial precedent.” Merck & Co. v.
Reynolds, 559 U.S. 633, 648 (2010). The history and
precedent here are informative.
Under English common law, and for much of our history,
physical custody, confinement, or detention was required as
a prerequisite to habeas relief. See, e.g., Rumsfeld v. Padilla,
542 U.S. 426, 437 (2004) (recognizing that “we no longer
require physical detention as a prerequisite to habeas relief”);
Preiser, 411 U.S. at 486 (collecting cases in which the
petitioner complained of “being unlawfully subjected to
TAVARES V. WHITEHOUSE 17
physical restraint”); Wales v. Whitney, 114 U.S. 564, 569
(1885) (finding no habeas jurisdiction where “petitioner [wa]s
under no physical restraint”); 3 William Blackstone,
Commentaries *129–37. Beginning in 1963, however, the
Supreme Court expansively interpreted “custody” to include
continued oversight by criminal justice authorities with the
prospect of revocation of parole and return to incarceration.
See Jones, 371 U.S. at 243 (holding that parolee was in
custody, in part because he remained subject to the custody
and control of the state parole board); see also Hensley v.
Mun. Court, 411 U.S. 345, 351 (1973) (formulating the
“severe restraint[] on individual liberty” test for custody, and
holding that petitioner was in custody when he was released
on personal recognizance pending execution of his
sentence).10
By the time Congress enacted the ICRA in 1968, this
expansion of “custody” was well under way. The Supreme
Court had already explained that “custody” should not be
construed unduly narrowly because habeas “is not now and
never has been a static, narrow, formalistic remedy; its scope
has grown to achieve its grand purpose—the protection of
individuals against erosion of their right to be free from
wrongful restraints upon their liberty.” Jones, 371 U.S. at
243. Congress could have used the parallel “in custody”
language or indicated that ICRA’s habeas provision was to be
10
Neither Jones nor Hensley mention, much less discuss, “detention.”
See generally Hensley, 411 U.S. 345; Jones, 371 U.S. 236.
18 TAVARES V. WHITEHOUSE
read in light of that jurisprudence by using “custody” rather
than “detention,” but it did not do so.11
Our conclusion that we should credit Congress’s use of
“detention” to narrow the scope of federal habeas jurisdiction
over ICRA claims is bolstered by the limited legislative
history. During deliberations in the House of
Representatives, House Minority Leader Gerald Ford
submitted a memorandum from the House Committee on the
Judiciary that equated detention in the ICRA context with
imprisonment: under § 1303, the “habeas corpus application
for release from tribal detention shall be made in the Federal
courts (under present Constitutional practice, non-Indian
citizens, if imprisoned under state law, must first seek habeas
11
The only other court that has analyzed whether “detention” and
“custody” should be interpreted differently determined only that
“detention” should not be construed more broadly than “custody.” See
Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 890–93 (2d
Cir. 1996); see also Jeffredo, 599 F.3d at 918 (citing the adoption of
Poodry’s analysis by Moore v. Nelson, 270 F.3d 789, 791 (9th Cir. 2001)).
The Second Circuit examined the federal habeas statutes, 28 U.S.C.
§ 2241 et seq., and concluded that they “appear[] to use the terms
‘detention’ and ‘custody’ interchangeably.” Poodry, 85 F.3d at 890–91.
However, while some provisions of the federal habeas statutes appear to
use the terms synonymously, others treat “detention” as a subset of
“custody.” Compare, e.g., 28 U.S.C. § 2245 (last amended June 25, 1948)
(“On the hearing of an application for a writ of habeas corpus to inquire
into the legality of the detention of a person pursuant to a judgment the
certificate of the judge who presided at the trial resulting in the judgment
. . . shall be admissible in evidence.”), with id. § 2242 (last amended June
25, 1948) (stating that an “[a]pplication for a writ of habeas corpus . . .
shall allege the facts concerning the applicant’s commitment or detention”
(emphasis added)). Even if these provisions create ambiguity as to the
meaning of the ICRA’s use of “detention,” such ambiguities must be
resolved in favor of the tribes’ inherent authority to self-govern. Ramah
Navajo Sch. Bd., Inc., 458 U.S. at 846; Cohen’s § 2.02[1], at 113.
TAVARES V. WHITEHOUSE 19
corpus by exhausting available state court remedies before
applying to Federal courts.).” 114 Cong. Rec. 9611 (1968).
Representative Reifel similarly explained that habeas corpus
under the ICRA “would assure effective enforcement of . . .
fundamental [trial] rights” that arise in the criminal context,
including the prohibition on double jeopardy, the privilege
against self-incrimination, and the right to confront witnesses.
Id. at 9553. As the Supreme Court in Santa Clara Pueblo
recognized, Congress’s “legislative investigation revealed
that the most serious abuses of tribal power had occurred in
the administration of criminal justice. In light of this finding,
. . . Congress chose at this stage to provide for federal review
only in habeas corpus proceedings.” 436 U.S. at 71 (internal
citation omitted); see also id. at 67 (describing “habeas
corpus as the exclusive means for federal-court review of
tribal criminal proceedings”); William C. Canby, Jr.,
American Indian Law in a Nutshell 422 (6th ed. 2014)
(concluding that, post–Santa Clara Pueblo, “the effectuation
of the non-criminal portions of the Indian Civil Rights Act
lies exclusively with [the tribal courts]”).12
12
We need not decide whether § 1303 applies only in the criminal
context. We merely note that Congress was concerned with a narrower
subset of tribal activity than would be covered under the current-day
“custody” standard. On this point, the dissent argues that “detention” and
“custody” should be understood as synonymous because the language of
§ 1303 tracks that of Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965),
a pre-ICRA case extending general habeas jurisdiction over a tribe’s
incarceration of a tribal member that was cited with approval during 1965
Senate subcommittee hearings on the ICRA. Dissent 35. But Colliflower
extended general habeas jurisdiction for a reason not applicable here:
because the tribe’s courts, having been developed under the supervision
and the guidelines of the Department of the Interior’s Bureau of Indian
Affairs, functioned “in part as a federal agency and in part as a tribal
agency.” Id. at 379. Importantly, Colliflower did not have occasion to
consider the scope of “detention” because the court used the term to refer
20 TAVARES V. WHITEHOUSE
Three cases that involve the limits of detention under
§ 1303 inform our analysis. We begin with Poodry, the first
case to address this issue. 85 F.3d 874. The petitioners,
members of the Tonawanda Band, were convicted of treason
after they accused the tribal council of misconduct. Id. at
877–78. As punishment, the tribe disenrolled them and
permanently banished them from the whole of the tribe’s
7,500 acre reservation. Id. at 878. The disenrollment and
banishment orders were served on the petitioners at their
homes by up to twenty-five people, who attempted to take the
petitioners “into custody and eject them from the
reservation.” Id. Although the initial ejection attempts
failed, the respondents “continued to harass and assault the
petitioners and their family members,” attacking one
petitioner on Main Street and “stoning” a second petitioner.
Id. The tribe also denied the petitioners home electrical
services and health services and medications. Id.The Second Circuit held that the ICRA created federal
habeas jurisdiction over the tribal actions. Construing
ICRA’s “detention” requirement as “no broader” than the
“custody” requirement of other federal habeas statutes, the
Second Circuit concluded that the facts alleged—including
the manner in which the banishment orders were served, the
attempts at removal, the threats and assaults, and the denial of
electrical services—constituted “severe restraints on
[individual] liberty” under Hensley’s custody test. Id. at
893–95.
to a situation within the traditional confines of habeas corpus jurisdiction:
Colliflower’s incarceration pursuant to a criminal conviction. See id. at
371.
TAVARES V. WHITEHOUSE 21
The Second Circuit did not clearly distinguish between
whether it was the disenrollment or banishment of the
petitioners that constituted the severe restraint on liberty,
although it focused on the disenrollment. See id. at 895
(“Indeed, we think the existence of the orders of permanent
banishment alone . . . would be sufficient to satisfy the
jurisdictional prerequisites for habeas corpus. We deal here
. . . with the coerced and peremptory deprivation of the
petitioners’ membership in the tribe and their social and
cultural affiliation.” (emphasis added)); see also id. at 897
(characterizing the question at issue as “whether a federal
court has jurisdiction to examine the scope of and limitations
on the Tonawanda Band’s power to strip the petitioners of
their tribal membership”); id. at 901 (rejecting argument that
“membership determinations [are] committed to the absolute
discretion of the tribe”).
Two years later, in Shenandoah, the Second Circuit
revisited jurisdiction under the ICRA. 159 F.3d 708. The
petitioners in Shenandoah, like the petitioners in Poodry,
were members of a tribe who challenged tribal leadership.
The petitioners alleged that, because of these activities, they
lost their jobs, their “voice[s]” in tribal governance, their
health insurance, their access to the tribe’s health center, and
their quarterly per capita distributions; were banished from
tribal businesses and recreational facilities; were stricken
from tribal membership rolls; were prohibited from speaking
with some tribe members; and were not sent tribal mailings.
Id. at 714.
Significantly, the Second Circuit stepped back from
Poodry and limited its reach. It clarified that Poodry had
only recognized federal habeas jurisdiction for cases
involving permanent banishment. Id. at 714 (citing Poodry
22 TAVARES V. WHITEHOUSE
in support of the proposition that “[h]abeas relief does
address more than actual physical custody, and includes
parole, probation, release on one’s own recognizance pending
sentencing or trial, and permanent banishment”). The Second
Circuit then concluded that the tribe’s misconduct at issue in
Shenandoah, while “serious,” was not a sufficiently severe
restraint on liberty to create habeas jurisdiction. Id.Notably, the Second Circuit again conflated disenrollment
and banishment in its analysis. The court characterized the
punishment in Poodry as considerably more severe than the
punishment in Shenandoah because in Poodry, “the
petitioners were convicted [ ] of treason, sentenced to
permanent banishment, and stripped of . . . Indian citizenship;
their names were removed from the Tribal rolls; and they
permanently [lost] any and all rights afforded [tribal]
members.” Id. (internal quotation marks omitted). By
contrast, the petitioners in Shenandoah “[did] not allege[] that
they were banished from the Nation, deprived of tribal
membership, convicted of any crime, or that defendants
attempted in anyway [sic] to remove them from [tribal land].”
Id.In 2010, our court addressed the scope of habeas
jurisdiction under § 1303 of the ICRA in Jeffredo. 599 F.3d
913. The Pechanga Band of the Luiseño Mission Indians
disenrolled a number of its members following a dispute
about their lineage. Id. at 915. As a result of their
disenrollment, the petitioners lost access to the tribe’s senior
citizen center, health clinic, and schools. Id. at 918–19.
Although they were not excluded from the reservation, the
petitioners contended that, because of their new status as non-
members, they were “under a continuing threat of
banishment/exclusion.” Id. at 919. They filed a habeas
TAVARES V. WHITEHOUSE 23
petition under the ICRA, arguing that their disenrollment
“was tantamount to an unlawful detention.” Id. at 915.
We held that the district court lacked jurisdiction because
the petitioners were not detained under § 1303. Id. We
engaged in a factual inquiry about the severity of the
restrictions the petitioners faced, noting that the petitioners
“have not been banished from the Reservation,” “have never
been arrested, imprisoned, fined, or otherwise held by the
Tribe,” “have not been evicted from their homes or suffered
destruction of their property,” have not had “personal
restraint (other than access to [certain] facilities)” imposed on
them, and have not had their movements on the Reservation
subject to restriction. Id. at 919.
Unlike the Second Circuit, we distinguished between
disenrollment and banishment, and recognized that there is no
federal habeas jurisdiction over tribal membership disputes.
Id. at 920 (citing Santa Clara Pueblo, 436 U.S. at 72 n.32)
(observing that “[w]e cannot circumvent our lack of
jurisdiction over [tribal decisions regarding disenrollment of
members] by expanding the scope of the writ of habeas
corpus to cover exactly the same subject matter”).13
13
The dissent’s claim that Jeffredo is “binding precedent” that
dictates the result is not borne out by an examination of the analysis.
Dissent 38. Notably, Jeffredo relied on Moore as the sole authority
supporting the proposition that detention “must be interpreted similarly”
to custody, 599 F.3d at 918, and as Jeffredo itself acknowledges, Moore
stated merely that “[t]here is no reason to conclude that the requirement
of ‘detention’ set forth in . . . § 1303 is any more lenient than the
requirement of ‘custody’ set forth in the other habeas statutes,” 270 F.3d
at 791 (emphasis added). In stating that “an ICRA habeas petition is only
proper when the petitioner is in custody,” Jeffredo correctly recognized
that being “in custody” is a necessary condition for jurisdiction under the
24 TAVARES V. WHITEHOUSE
Looking at the statute and these cases, several principles
emerge. First, we do not need to decide whether to adopt
Poodry’s conclusion that tribal banishment orders amount to
“detention” under § 1303, because even under Poodry’s logic,
the Second Circuit limited habeas jurisdiction only to
permanent banishment orders, not temporary exclusion orders
like those in this case. Poodry, 85 F.3d at 901; see also
Shenandoah, 159 F.3d at 714. In addition, we have already
rejected Poodry’s assertion of federal habeas jurisdiction over
tribal membership disputes. Compare Poodry, 85 F.3d at 901(rejecting argument that “membership determinations [are]
committed to the absolute discretion of the tribe”), with
Jeffredo, 599 F.3d at 920 (“We find . . . nothing in the
legislative history of § 1303 that suggests the [habeas]
provision should be interpreted to cover disenrollment
proceedings.”). We also have taken issue with Poodry’s
assertion that a tribe’s interference with “an individual’s
social, cultural, and political affiliations” can create custody.
Compare Poodry, 85 F.3d at 897, with Jeffredo, 599 F.3d at
921.14
ICRA. 599 F.3d at 918. However, because the panel subsequently
determined that the petitioners were not in custody, it did not have
occasion to determine (as we do here) whether custody is a sufficient
condition to create habeas jurisdiction under the ICRA.
14
The dissent places great weight on Poodry, describing the case as
the “leading authority” on banishment orders. See Dissent 44 n.9. Not
only is Poodry inapposite for the reasons we have already outlined, but
also, Poodry has been extensively criticized for disrupting the balance
Congress struck in the ICRA between preserving tribal sovereignty and
upholding the rights of individual tribe members. See, e.g., Cohen’s
§ 14.04[2], at 986–87 (observing that Poodry’s “attempt[] to circumvent
exclusive tribal jurisdiction disrupt[s] the delicate balance of tribal and
federal interests established by Congress” and risks “insert[ing] the federal
courts into precisely the types of internal tribal decisions that most
TAVARES V. WHITEHOUSE 25
Second, the federal courts lack jurisdiction to review
direct appeals of tribal membership decisions because they
fall within the scope of tribes’ inherent sovereignty. Jeffredo,
599 F.3d at 915. In many cases, a tribe’s decision to
temporarily exclude a member will be another expression of
its sovereign authority to determine the makeup of the
community.15 See Kunesh, supra note 1, at 86. Because
exclusion orders are often intimately tied to community
relations and membership decisions, we cannot import an
exclusion-as-custody analysis from the ordinary habeas
context. See Santa Clara Pueblo, 436 U.S. at 72 n.32 (“A
tribe’s right to define its own membership for tribal purposes
has long been recognized as central to its existence as an
independent political community. Given the often vast gulf
between tribal traditions and those with which federal courts
are more intimately familiar, the judiciary should not rush to
create causes of action that would intrude on these delicate
matters.” (citations omitted)).16
implicate tribal sovereignty”); Kunesh, supra note 1, at 124 (criticizing
Poodry for “unabashedly substitut[ing] its own legal and cultural bias for
the U.S. legal system and the rights and protections established under
federal law”).
15
The use of exclusion as a tool of social control is by no means
unique to the tribes. See Nan Goodman, Banished: Common Law and the
Rhetoric of Social Exclusion in Early New England 1–2 (2012) (noting
that “inclusion and exclusion are paired” because they both help define the
community).
16
The dissent asserts that “[b]anishment has generally been held to
satisfy the ‘in custody’ requirement of the general habeas laws.” Dissent
42 (alteration in original) (quoting Cohen’s § 9.09, at 780–81) (internal
quotation marks omitted). But the only authority the dissent cites for this
proposition is Cohen’s Handbook of Federal Indian Law, which in fact
states only that “banishment has been generally held to satisfy the ‘in
26 TAVARES V. WHITEHOUSE
Third, tribes have the authority to exclude non-members
from tribal land. See Merrion v. Jicarilla Apache Tribe, 455
U.S. 130, 142 (1982) (recognizing tribes’ authority to exclude
non-members); Hardin v. White Mountain Apache Tribe, 779
F.2d 476, 479 (9th Cir. 1985) (same). If tribal exclusion
orders were sufficient to invoke habeas jurisdiction for tribal
members, there would be a significant risk of undercutting the
tribes’ power because “any person,” members and non-
members alike, would be able to challenge exclusion orders
through § 1303. Thus, tribal sovereignty vis-à-vis exclusion
of non-members would collide with habeas jurisdiction.
With this framework in mind, we return to the principles
animating habeas jurisdiction under § 1303 of the ICRA. We
view Congress’s choice of “detention” rather than “custody”
in § 1303 as a meaningful restriction on the scope of habeas
jurisdiction under the ICRA. See Merck & Co., 559 U.S. at
648. But to the extent that the statute is ambiguous, we
construe it in favor of tribal sovereignty. Ramah Navajo Sch.
Bd., Inc., 458 U.S. at 846; Cohen’s § 2.02[1], at 113. A
temporary exclusion is not tantamount to a detention. And
recognizing the temporary exclusion orders at issue here as
beyond the scope of “detention” under the ICRA bolsters
tribes’ sovereign authority to determine the makeup of their
communities and best preserves the rule that federal courts
should not entangle themselves in such disputes.
Petitioners’ contrary reading of the statute cannot be
reconciled. They make much of the fact that their cases do
not involve disenrollment and argue that we should
custody’ requirement” read into the ICRA by Poodry and two district
court cases. See Cohen’s § 9.09, at 780–81 & n.16. Again, this broad
statement circles back to Poodry’s flawed analysis.
TAVARES V. WHITEHOUSE 27
distinguish Jeffredo on this basis. We agree that it is
significant that the petitioners have only been temporarily
excluded, but we disagree with the conclusion they draw. If
we adopted the petitioners’ proposed rule that exclusion of
any duration creates habeas jurisdiction, it would create a
perverse incentive for tribes to first disenroll and then banish
a member. Because federal courts lack jurisdiction over
membership decisions, and because tribes have authority to
exclude non-members from tribal lands, this two-step dance
could be a loophole to avoid federal jurisdiction under the
ICRA. By incentivizing disenrollment, the petitioners’
proposed construct runs counter to Congress’s goal of
“strengthening the position of individual tribal members vis-
à-vis the tribe” by enacting the ICRA. Santa Clara Pueblo,
436 U.S. at 62.
Nor is the dissent’s interpretation of § 1303 persuasive.
As we have explained, statutory interpretation and the
legislative history support reading detention more narrowly
than custody, but to the extent that the statute is ambiguous,
we construe the statute in favor of Indian sovereignty in
accord with the Indian canons of construction. See Ramah
Navajo Sch. Bd., Inc., 458 U.S. at 846; Cohen’s § 2.02[1], at
113. These canons seemingly play no role in the dissent’s
analysis. Instead, the dissent claims that to preserve the
balance Congress struck “between the protection of tribal
sovereignty and the vindication of civil rights,” “we ought
simply to apply the standard of federal habeas law.” Dissent
49.
The dissent fails to recognize that it is precisely the
indiscriminate importation of an external body of law into the
ICRA that risks trenching upon that balance. Under its
reading, even if a tribe member was disenrolled from the
28 TAVARES V. WHITEHOUSE
tribe, the tribe’s decision to exclude that former member
would still be subject to judicial review, even while a
decision to exclude a non-member would not be. See Dissent
49–50. The dissent argues that former tribe members should
enjoy a special status because “[t]ribes’ power to ban non-
members from their land is rooted in their inherent power as
separate sovereigns,” while “tribes’ power to ban tribal
members from their land was explicitly ‘limit[ed]’ and
‘modif[ied]’ by Congress’s use of its ‘plenary authority’ to
provide individual rights to American Indians and to establish
a narrow mechanism of review to protect those rights.”
Dissent 50 (second and third alterations in original). This
reading of the ICRA cannot be reconciled with the statute
itself: the ICRA does not “explicitly” address exclusion
orders, and many of its provisions, including § 1303, apply to
tribe members and non-members alike. See also 25 U.S.C.
§ 1302. Nor does the dissent explain why it would be an
intrusion on tribal sovereignty to prevent a tribe from
excluding non-members, but not an intrusion to prevent a
tribe from excluding former or current tribe members. On the
contrary: as we have observed, the ability to determine the
membership of the community has long been regarded as an
essential attribute of sovereignty.
Thus, we conclude that the district court lacked
jurisdiction under § 1303 of the ICRA to review the challenge
to the temporary exclusion orders. In so holding, we in no
way minimize the significance of petitioners’ allegations or
the personal impact of the exclusion orders. The petitioners
raise free speech and due process claims that implicate the
substantive protections Congress saw fit to grant Indians with
respect to their tribes through the ICRA. See Quair v. Sisco,
359 F. Supp. 2d 948, 962 (E.D. Cal. 2004) (“Section 1302 [of
the ICRA] provides that no Indian tribe in exercising powers
TAVARES V. WHITEHOUSE 29
of self-government shall do or fail to do the things set forth in
Section 1302.”). But the petitioners’ remedy is with the
Tribe, not in the federal courts. Cf. Fisher v. Dist. Court, 424
U.S. 382, 390–91 (1976) (“[E]ven if a jurisdictional holding
occasionally results in denying an Indian plaintiff a forum to
which a non-Indian has access, such disparate treatment of
the Indian is justified because it is intended to benefit the
class of which he is a member by furthering the congressional
policy of Indian self-government.”).
APPEAL DISMISSED AS MOOT WITH RESPECT
TO DOLLY AND BARBARA SUEHEAD AND DONNA
CAESAR AND AFFIRMED FOR LACK OF
JURISDICTION WITH RESPECT TO ALL
PETITIONERS.
WARDLAW, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority that we lack habeas jurisdiction
over the UAIC’s withholding orders, and that the expired
two-year banishment orders against Dolly and Barbara
Suehead and Dona Caesar should be dismissed as moot.
However, I conclude that Jessica Tavares’s ten-year
banishment order severely restrains her liberty and constitutes
“detention” under the Indian Civil Rights Act (“ICRA”).
Therefore, I respectfully disagree with the majority’s holding
that we lack jurisdiction to entertain her habeas petition.
Tavares is a longtime leader of the UAIC. She served on
the Tribal Council from approximately 1998 to 2010; for
many of these years, she was Council Chair. In 2011,
30 TAVARES V. WHITEHOUSE
Tavares helped to organize a campaign to remove certain
Tribal Council members from office for malfeasance,
alleging financial misdealings and corruption related to
tribal elections. Notwithstanding Tavares’s right to
free expression,1 the tribe accused her of making
“misrepresentations against the Tribe” and “defaming [its]
reputation” in violation of tribal law.
In retaliation, the tribe informed Tavares that she was
henceforth “banned from tribal lands and facilities, for a
period of ten (10) years, due to [her] repeated and serious
violations of tribal law, effective November 15, 2011.”2 The
tribe’s order further specified that Tavares was “banned from
attending any tribally sponsored events and/or entering all
Tribal properties and/or surrounding facilities, which
includes, but is not limited to the Tribal Offices, Thunder
Valley Casino, the UAIC School, Health and Wellness
facilities at the Rancheria, and/or the Park at the Rancheria.”
The restraint on Tavares’s individual liberty is obvious: she
cannot set foot on her tribe’s reservation.
The district court was correct to recognize that “the
restraint in this case was severe.” Tavares v. Whitehouse,
1
The ICRA’s free expression clause reads in relevant part, “No
Indian tribe in exercising powers of self-government shall . . . (1) make or
enforce any law . . . abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and to petition for a redress
of grievances . . . .” 25 U.S.C. § 1302(a).
2
The majority opinion avoids referring to the Petitioners’
“banishment,” using instead the euphemism “exclusion.” Maj. Op. 8. My
use of the terms “banned” and “banishment” reflects the language the
UAIC Tribal Council used to describe the punishment it meted out to
Petitioners. The UAIC does not dispute that Petitioners were “banned.”
TAVARES V. WHITEHOUSE 31
No. 2:13–CV–02101–TLN, 2014 WL 1155798, at *10 (E.D.
Cal. Mar. 21, 2014). Having so found, it should have
exercised jurisdiction over her habeas petition pursuant to
25 U.S.C. § 1303.3I.
A.
“As separate sovereigns pre-existing the Constitution,
tribes have historically been regarded as unconstrained by
those constitutional provisions framed specifically as
limitations on federal or state authority.” Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 56 (1978). However, “Congress has
plenary authority to limit, modify or eliminate the powers of
local self-government which the tribes otherwise possess.”
Id. “Title I of the ICRA, 25 U.S.C. §§ 1301–1303, represents
an exercise of that authority.” Id. at 57.
Congress enacted the ICRA in 1968 “to insure that the
American Indian is afforded the broad constitutional rights
secured to other Americans.” S. Rep. No. 90-841, at 6
(1967). A “central purpose of the ICRA” was to “‘protect
individual Indians from arbitrary and unjust actions of tribal
governments.’” Santa Clara Pueblo, 436 U.S. at 61 (quoting
S. Rep. No. 90-841, at 5–6). Accordingly, the ICRA
“impos[es] certain restrictions upon tribal governments
similar, but not identical, to those contained in the Bill of
Rights and the Fourteenth Amendment.” Id. at 57; see also
25 U.S.C. § 1302. The rights enumerated in § 1302 do not
3
Section 1303 states, in full, “The privilege of the writ of habeas
corpus shall be available to any person, in a court of the United States, to
test the legality of his detention by order of an Indian tribe.”
32 TAVARES V. WHITEHOUSE
contain implied causes of action. Santa Clara Pueblo, 436
U.S. at 51–52, 72. But Congress provided an explicit cause
of action to protect the rights that it chose to grant to the
American Indian: the “privilege of the writ of habeas corpus.”
25 U.S.C. § 1303.
Though narrow, this claim for relief is firmly established.
See Boe v. Fort Belknap Indian Cmty., 642 F.2d 276, 278–79
(9th Cir. 1981) (describing 25 U.S.C. § 1303 as “[t]he only
avenue available to a party who seeks relief in the federal
courts for an alleged violation of the ICRA”). Of course,
recognizing the “well-established federal policy of furthering
Indian self-government,” Santa Clara Pueblo, 436 U.S. at 62(internal quotation marks omitted), we “should not rush to
create causes of action” that would intrude upon tribes’
inherent sovereignty, id. at 72 n.32. But we are not asked to
“create causes of action” in this case; we are asked to apply
the only law by which Indians may vindicate their ICRA
rights—the congressionally granted right to petition for
habeas relief.
Tavares presents us with precisely the kind of case over
which Congress intended to establish federal jurisdiction:
having exercised her right to free expression which Congress,
through the ICRA, had explicitly guaranteed her, Tavares
suffered retaliation from the UAIC in the form of “severe
restraints on individual liberty” not shared by other members
of her tribe. Poodry v. Tonawanda Band of Seneca Indians,
85 F.3d 874, 894 (2d Cir. 1996) (internal quotation marks
omitted). “[R]estraints on a [person’s] liberty . . . not shared
by the public generally . . . have been thought sufficient in the
English-speaking world to support the issuance of habeas
corpus.” Jones v. Cunningham, 371 U.S. 236, 240 (1963).
This is the trigger for jurisdiction that Congress designed.
TAVARES V. WHITEHOUSE 33
We should acknowledge our congressionally mandated
jurisdiction and exercise our duty to adjudicate Tavares’s
petition, as Congress intended when it balanced Indian
sovereignty against individual rights in the ICRA. It is not
our place to recalibrate that balance.
B.
“The term ‘detention’ in the [ICRA] statute must be
interpreted similarly to the ‘in custody’ requirement in other
habeas contexts.” Jeffredo v. Macarro, 599 F.3d 913, 918
(9th Cir. 2009). Reflecting this principle, the bodies of law
construing the “detention” and “custody” requirements are
interdependent. Just as habeas courts applying the ICRA rely
on authorities construing “custody” in general habeas
contexts, courts in general habeas contexts rely on authorities
construing “detention” under the ICRA. For instance, the
Third Circuit concluded in a non-ICRA case that a person
sentenced to perform five hundred hours of community
service was “in custody,” relying in part on the Second
Circuit’s analysis of “detention” in an ICRA case. Barry v.
Bergen Cty. Prob. Dep’t, 128 F.3d 152, 161 (3d Cir. 1997)
(discussing Poodry, 85 F.3d at 894–95).
The majority holds that “detention” as used in the ICRA
is “understood as a subset of custody.” Maj. Op. 16. The
majority suggests that the absence of the word “custody”
from 25 U.S.C. § 1303 is significant because, by contrast, the
word “custody” is used in “every section” of federal habeas
statutes 28 U.S.C. §§ 2241(c)(1)–(4), 2254(a), and 2255(a).
However, the word “detention” also appears frequently
throughout other sections of the federal habeas statutes. See
28 U.S.C. §§ 2245, 2249, 2253 (referring to “detention”
only); §§ 2241, 2242, 2243, 2244, 2255 (referring to both
34 TAVARES V. WHITEHOUSE
“detention” and “custody,” apparently interchangeably); cf.
§§ 2252, 2254 (referring to “custody” only). There is no
indication in any part of any section that the terms might have
distinct meanings: if anything, the statutes suggest, as a
whole, that “detention” and “custody” are interchangeable.
This is why the Poodry court declined to differentiate
between “detention” and “custody,” stating,
We find the choice of language unremarkable
in light of references to “detention” in the
federal statute authorizing a motion attacking
a federal sentence, see § 2255, as well as in
the procedural provisions accompanying
§ 2241, see §§ 2242, 2243, 2244(a), 2245,
2249, 2253. Congress appears to use the terms
“detention” and “custody” interchangeably in
the habeas context. We are therefore reluctant
to attach great weight to Congress’s use of the
word “detention” in § 1303.
85 F.3d at 890–91.
Reliance upon legislative history is unnecessary to
supplement our statutory analysis. See Nw. Forest Res.
Council v. Glickman, 82 F.3d 825, 830–31 (9th Cir. 1996), as
amended on denial of reh’g (May 30, 1996) (“In interpreting
a statute, we look first to the plain language of the statute,
construing the provisions of the entire law, including its
object and policy, to ascertain the intent of Congress. Then,
if the language of the statute is unclear, we look to its
legislative history.” (internal quotation marks omitted)). But
to the extent that legislative history is relevant, it supports our
exercise of jurisdiction to entertain Tavares’s habeas petition.
TAVARES V. WHITEHOUSE 35
The limited legislative history available suggests that
“detention” and “custody” are interchangeable terms in the
habeas context. The language of § 1303 “closely tracks the
language of Colliflower v. Garland, 342 F.2d 369 (9th Cir.
1965)[, overruled on other grounds by United States v.
Wheeler, 435 U.S. 313 (1978), as recognized by Davis v.
Muellar, 643 F.2d 521, 532 n.13 (8th Cir. 1981)].” Poodry,
85 F.3d at 891. In Colliflower, we relied on the broad scope
of the general federal habeas statutes to conclude that “it is
competent for a federal court in a habeas corpus proceeding
to inquire into the legality of the detention of an Indian
pursuant to an order of an Indian court.” 342 F.2d at 379.
Observing that Congress “frequently invoked [Colliflower]
with approval during the 1965 [Subcommittee on
Constitutional Rights of the Senate Judiciary Committee]
hearings” that preceded the ICRA’s enactment, the Second
Circuit concluded that Congress intended the ICRA’s habeas
provision to be as broad as, but “no broader than,” its federal
counterparts.4 Poodry, 85 F.3d at 891, 893.
4
The majority opinion contends that we ought to disregard this piece
of legislative history in part because Colliflower involved a prisoner
incarcerated due to a criminal conviction, and so did not consider the
scope of “detention” beyond “the traditional confines of habeas corpus
jurisdiction.” Maj. Op. 19–20 n.12. Of course, an identical point can be
made about Preiser v. Rodriguez, 411 U.S. 475, 484–85 (1973), on which
the majority relies to support its argument that “physical confinement” is
a requirement of “detention,” Maj. Op. 15–16, but there the majority
seems unconcerned with this distinction.
My point is not that Colliflower is authoritative precedent for the
exact issue before us. If it were, such a lengthy decision would be
unnecessary. But given that there is, as the majority opinion notes, little
other legislative history for us to consider, Maj. Op. 18, Colliflower is
relevant because it apparently guided Congress’s understanding that the
habeas provision it was enacting within ICRA would be as broad as the
36 TAVARES V. WHITEHOUSE
The majority opinion highlights two pieces of history
from the ICRA’s enactment to support its contrary position,
but neither is persuasive. First, the majority contends that a
memorandum prepared by the House of Representatives
Committee on the Judiciary supports its conclusion because
the memorandum describes the function of § 1303 with a
single reference to “tribal detention,” not “custody.” 114
Cong. Rec. 9611 (1968). But the memorandum is not an
analytical discussion of Congress’s word choice of
“detention” in the statute. It is merely a brief summary of
§ 1303; indeed it is unsurprising that the memorandum
mirrors the statutory language. The entirety of the excerpt
dedicated to the whole of the ICRA’s provision of individual
rights—of which § 1303 was but one part—is barely 150
words long. See id. Like the Second Circuit, I am “therefore
reluctant to attach great weight to Congress’s use of the word
‘detention’ in § 1303.” Poodry, 85 F.3d at 891.
Second, the majority speculates that Representative
Reifel’s remarks on the floor of the House show that the
ICRA’s habeas provision was intentionally circumscribed to
rights associated with criminal trials. Representative Reifel
noted that the provision of a federal habeas forum in § 1303
would “assure effective enforcement of [the] fundamental
rights” enumerated in the ICRA. 114 Cong. Rec. 9553
(1968). Those include not only protections associated with
criminal trials, see 25 U.S.C. § 1302(a)(3)–(10), but also the
ICRA’s analogues to the First and Fourth Amendments, see
§ 1302(a)(1)–(2). Thus, Representative Reifel’s commentary
does not support the majority’s argument that § 1303 is
limited only to rights associated with criminal trials. In any
federal habeas statutes that had long been part of the nation’s laws. The
majority opinion does not respond to this point.
TAVARES V. WHITEHOUSE 37
case, Representative Reifel’s brief remarks do not illuminate
any purported nuances distinguishing “detention” from
“custody”; his comments are irrelevant to our analysis of the
language Congress chose when it enacted § 1303.
C.
To reach its holding that “detention” in the ICRA is
narrower than “custody” in the general habeas statutes, the
majority relies heavily upon Poodry’s phrasing that 25 U.S.C.
§ 1303 “is no broader than analogous statutory provisions for
collateral relief.” 85 F.3d at 893 (emphasis added). But
Poodry used the phrase “no broader” specifically because two
courts—including ours—had previously held that “detention”
in the ICRA was broader than “custody” in the non-ICRA
context. See Settler v. Yakima Tribal Court (“Settler I”), 419
F.2d 486, 489–90 (9th Cir. 1969), abrogated by Santa Clara
Pueblo, 436 U.S. 49, and Hensley v. Mun. Court, 411 U.S.
345 (1973), as recognized by Moore v. Nelson, 270 F.3d 789,
791–92 (9th Cir. 2001); Tracy v. Superior Court, 810 P.2d
1030, 1049 (Ariz. 1991) (en banc). In both cases, the courts
noted that a person subjected to a fine only is under
“detention” for purposes of § 1303, even though a fine alone
would not bring that person within the jurisdiction of the
general federal habeas statutes.5 Thus Poodry reined in the
meaning of “detention” to the outer limits of “custody,” but
it did not suggest that “detention” was any narrower than
“custody.” Poodry provides no support for the majority
opinion’s novel holding that an American Indian may be in
5
See, e.g., Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (“We
have repeatedly recognized that the imposition of a fine, by itself, is not
sufficient to meet [28 U.S.C.] § 2254’s jurisdictional requirements.”).
38 TAVARES V. WHITEHOUSE
“custody” for purposes of the general habeas statutes, but not
in “detention” for purposes of the ICRA’s habeas statute.
We actually have binding precedent to the contrary,
which the majority opinion fails to acknowledge. It is the law
of our Circuit that “[t]he term ‘detention’ in the [ICRA]
statute must be interpreted similarly to the ‘in custody’
requirement in other habeas contexts.” Jeffredo, 599 F.3d at
918; see also Boozer v. Wilder, 381 F.3d 931, 934 n.2 (9th
Cir. 2004) (“Detention [as used in 25 U.S.C. § 1303] is
interpreted with reference to custody under other federal
habeas provisions.”); Moore, 270 F.3d at 791–92 (9th Cir.
2001) (relying on habeas cases interpreting custody to
analyze detention under the ICRA); cf. Mills v. Taylor, 967
F.2d 1397, 1400 (9th Cir. 1992) (affirming a grant of habeas
corpus, in part because the panel “conclude[d] that Congress
intended no change in meaning when it substituted
‘detention’ for ‘custody’ [in 18 U.S.C. § 3585]”).
Morever, the majority splits from every other federal
appellate court to have addressed this question. The Second
Circuit recognizes that “Congress appears to use the terms
‘detention’ and ‘custody’ interchangeably in the habeas
context.” Poodry, 85 F.3d at 891. The Tenth Circuit “read[s]
the ‘detention’ language as being analogous to the ‘in
custody’ requirement contained in 28 U.S.C. § 2241.” Dry v.
CFR Court of Indian Offenses, 168 F.3d 1207, 1208 n.1 (10th
Cir. 1999); see also Valenzuela v. Silversmith, 699 F.3d 1199,
1203 (10th Cir. 2012); Walton v. Tesuque Pueblo, 443 F.3d
1274, 1279 n.1 (10th Cir. 2006). And the Sixth Circuit
recognizes that “habeas claims brought under the Indian Civil
Rights Act, 25 U.S.C. § 1303, are most similar to habeas
actions arising under 28 U.S.C. § 2241,” § 1303’s “federal
law analogue.” Kelsey v. Pope, 809 F.3d 849, 854 (6th Cir.
TAVARES V. WHITEHOUSE 39
2016), cert. denied sub nom. Kelsey v. Bailey, 137 S. Ct. 183(2016).
II.
Half a century ago, the Supreme Court made clear that a
habeas petitioner is in “detention” or “custody” when she is
subjected to severe restraints on liberty that need not rise to
the level of physical confinement. The Court declared,
“History, usage, and precedent can leave no doubt that,
besides physical imprisonment, there are other restraints on
a man’s liberty, restraints not shared by the public generally,
which have been thought sufficient in the English-speaking
world to support the issuance of habeas corpus.” Jones, 371
U.S. at 240. Ever since, the Court consistently has “very
liberally construed the ‘in custody’ requirement for purposes
of federal habeas.” Maleng v. Cook, 490 U.S. 488, 492
(1989) (per curiam).6 For our part, we faithfully have applied
the Court’s instructions to our cases, recognizing that a
habeas petitioner need only show “that he is subject to a
significant restraint upon his liberty” for our jurisdiction to
obtain. Wilson v. Belleque, 554 F.3d 816, 822 (9th Cir.
2009).
6
The Supreme Court’s broad construction of the “custody”
requirement reflects the wide scope of application that the writ has
enjoyed for centuries. For example, William Blackstone explained that
the writ is “efficacious . . . in all manners of illegal confinement.”
3 William Blackstone, Commentaries on the Laws of England 131 (Univ.
of Chicago Press 1979) (1768); see also Ex parte McCardle, 73 U.S.
(6 Wall.) 318, 325–26 (1867) (characterizing the writ of habeas corpus as
the judicial remedy for “every possible case of privation of liberty
contrary to the National Constitution, treaties, or laws,” the scope of
which is so broad that it is “impossible to widen”).
40 TAVARES V. WHITEHOUSE
In determining whether a habeas petitioner is “in
custody,” the Supreme Court has “rel[ied] heavily on the
notion of a physical sense of liberty—that is, whether the
legal disability in question somehow limits the putative
habeas petitioner’s movement.” Williamson v. Gregoire, 151
F.3d 1180, 1183 (9th Cir. 1998). In Jones v. Cunningham,
the Supreme Court held that conditions of parole satisfied the
custody requirement where the parolee was required to
remain in a particular community, make periodic reports to a
parole officer, and refrain from visiting certain places. 371
U.S. at 242–43. The Court also has held that an individual
released on his own recognizance pending sentencing after
conviction is “in custody” because he must appear at times
and places ordered by the court and “cannot come and go as
he pleases.” Hensley, 411 U.S. at 351; see also, e.g., Justices
of Boston Mun. Court v. Lydon, 466 U.S. 294, 301 (1984).
Similarly, we have held that a petitioner required to log
“fourteen hours of attendance at an alcohol rehabilitation
program” was “in custody” because the sentence required the
petitioner’s “physical presence at a particular place,” which
“significantly restrain[ed] [his] liberty to do those things
which free persons in the United States are entitled to do.”
Dow v. Circuit Court, 995 F.2d 922, 922–23 (9th Cir. 1993)
(per curiam).7 In these instances, the petitioner was “in
custody” for purposes of habeas jurisdiction because the
restraints on his physical liberty were “not shared by the
public generally.” Jones, 371 U.S. at 240. It is clear that
7
Likewise, in Barry v. Bergen County Probation Department, the
Third Circuit held that court-ordered community service constituted
“custody” because an “individual who is required to be in a certain
place—or in one of several places—to attend meetings or to perform
services, is clearly subject to restraints on his liberty not shared by the
public generally.” 128 F.3d at 161.
TAVARES V. WHITEHOUSE 41
such restraints need not rise to the level of actual confinement
for habeas jurisdiction to attach.8
As with “custody,” the restraint on physical liberty is the
essence of “detention” under the ICRA. Thus, in Means v.
Navajo Nation, 432 F.3d 924 (9th Cir. 2005), we held that a
petitioner was in “detention” for ICRA purposes when the
conditions of pretrial release barred the petitioner from going
within one hundred yards of his former father-in-law’s home
and required him to appear as scheduled before the trial court.
Id. at 928 (citing Lydon, 466 U.S. at 300–02, and Hensley,
411 U.S. at 351–52). Similarly, in Settler v. Lameer (“Settler
II”), 419 F.2d 1311, 1312 (9th Cir. 1969) (per curiam), we
held that despite the lack of physical confinement, petitioners
released on bail satisfied the ICRA’s detention requirement.
See also Moore, 270 F.3d at 791 (“Bail status clearly restricts
liberty in a way that a purely monetary fine does not; the
petitioner ‘cannot come and go as he pleases.’” (quoting
Hensley, 411 U.S. at 351)). Consistent with the Supreme
Court’s construction of the “custody” requirement under
8
The majority cites Preiser v. Rodriguez, 411 U.S. 475, 484–85
(1973), for the proposition that physical confinement was once a
prerequisite to habeas relief. Maj. Op. 16–17. Notwithstanding that it is
now “well established that actual physical custody is not a jurisdictional
prerequisite for federal habeas review,” Poodry, 85 F.3d at 893 (citing
Jones, 371 U.S. at 243), the circumstances of Preiser are not comparable
to Tavares’s banishment.
The Preiser petitioner was a state prisoner seeking release, which
explains why the Court used “custody,” “detention,” and “physical
confinement” interchangeably to describe Preiser’s situation. See 411
U.S. at 483–87. Contrary to the majority’s suggestion, the Court never
intimated that “detention” was somehow a subset of “custody.” To the
contrary: if Preiser, a non-ICRA case, stands for anything, it is that
“detention” and “custody” are interchangeable in habeas law.
42 TAVARES V. WHITEHOUSE
federal habeas law, we have made physical liberty the focal
point of our analysis of “detention” under the ICRA.
III.
A.
Banishment is a uniquely severe punishment. It does
“more than merely restrict one’s freedom to go or remain
where others have the right to be: it often works a destruction
of one’s social, cultural, and political existence.” Poodry, 85
F.3d at 897. Tavares’s ten-year banishment is not “a modest
fine or a short suspension of a privilege . . . but [rather] the
coerced and peremptory deprivation of [her] membership in
the tribe and [her] social and cultural affiliation.” Id. at 895.
For these reasons, “[b]anishment has generally been held to
satisfy the ‘in custody’ requirement” of the general habeas
laws. Cohen’s Handbook of Federal Indian Law § 9.09,
780–81 (Nell Jessup Newton ed., 2012) (“Cohen’s”).
Whether under the law of our circuit or that of any other to
consider the issue, Tavares’s banishment places her in
“custody”; thus, she is in “detention.”
The majority asserts that three cases about the limits of
detention under § 1303 inform its analysis: Poodry v.
Tonawanda Band of Indians, 85 F.3d 874; Shenandoah v.
United States Department of Interior, 159 F.3d 708 (2d Cir.
1998); and Jeffredo v. Macarro, 599 F.3d 913. But only one
of these cases, Poodry, squarely addresses the legal principles
animating this case. Neither Shenandoah nor Jeffredo
pertains to banishment. To the contrary, they are explicitly
not about banishment. The Shenandoah petitioners did “not
allege[] that they were banished from the Nation, . . . or that
defendants attempted in anyway [sic] to remove them from
TAVARES V. WHITEHOUSE 43
[tribal] territory.” 159 F.3d at 714. Similarly, the Jeffredo
petitioners “ha[d] not been banished” and “[t]heir movements
ha[d] not been restricted on the Reservation.” 599 F.3d at
919. Only Poodry’s holding bears upon the case before us,
and it supports a finding of jurisdiction over Tavares’s
petition.
In Poodry, several members of the Tonawanda Band of
Seneca Indians filed a petition for habeas relief under 25
U.S.C. § 1303 after they were ordered permanently banished
from the tribe. The petitioners had accused members of the
Tonawanda Council of Chiefs of misusing tribal funds,
suspending tribal elections, burning tribal records, and other
misconduct. Poodry, 85 F.3d at 877–78. Several months
later, the petitioners were accosted at their homes by groups
of fifteen to twenty-five persons, summarily convicted of
“treason,” and issued orders of permanent banishment. Id. at
878–79. The orders read in part, “You are to leave now and
never return. . . . [Y]our name is removed from the Tribal
rolls, your Indian name is taken away, and your lands will
become the responsibility of the Council of Chiefs. You are
now stripped of your Indian citizenship and permanently lose
any and all rights afforded our members. YOU MUST
LEAVE IMMEDIATELY AND WE WILL WALK WITH
YOU TO THE OUTER BORDERS OF OUR TERRITORY.”
Id. at 876 (alteration in original). When the petitioners
refused to leave the reservation, they suffered continued
harassment, were assaulted, and were denied electrical
service to their homes and businesses. Id. at 878
The Poodry petitioners filed for writs of habeas corpus
under § 1303, claiming they had been denied several rights
guaranteed under Title I of the ICRA. Id. at 879. The
Western District of New York dismissed their petitions for
44 TAVARES V. WHITEHOUSE
lack of subject-matter jurisdiction, holding that banishment
did not constitute “detention” for the purposes of § 1303. Id.
The Second Circuit reversed, concluding that where a tribal
member has been banished rather than imprisoned, “[T]he
ICRA’s habeas provision [nevertheless] affords the
petitioners access to a federal court to test the legality of their
‘convict[ion]’ and subsequent ‘banishment’ from the
reservation and . . . therefore [the district court] erred in
dismissing the petitions for writs of habeas corpus on
jurisdictional grounds.” Id. (second alteration in original).9
9
Decided twenty years ago, Poodry has since become the leading
authority on banishment as a basis for federal habeas jurisdiction. See
1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
Procedure § 8.2[d], 449 & 449 n.53 (6th ed. 2011) (citing Poodry, 85 F.3d
at 894–96); Ryan Fortson, Advancing Tribal Court Criminal Jurisdiction
in Alaska, 32 Alaska L. Rev. 93, 147 (2015) (characterizing Poodry as the
“seminal case addressing banishment”); see also William C. Canby, Jr.,
American Indian Law in a Nutshell 419 (6th ed. 2015) (discussing
Poodry).
Notwithstanding Poodry’s significance, the majority opinion
selectively quotes from an article by Professor Patrice Kunesh criticizing
Poodry in an attempt to discount Poodry’s persuasive value. See Maj. Op.
25 n.14. But Kunesh’s problem was not that Poodry applied
“jurisdictional prerequisites under federal habeas corpus laws” to “ICRA’s
habeas corpus provision,” which is the issue before us. Patrice H. Kunesh,
Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37
N.M. L. Rev. 85, 123. Rather, Kunesh’s criticisms were aimed at “the
reach of the court’s decision to disenrollment actions;” the court’s
disregard for “tribal legal systems;” and the portions of Poodry’s holding
that “extend[ed] far beyond federal habeas corpus jurisprudence,”
including to “potential and threatened restraints on an individual’s
liberty,” general “harassment,” and “interference” with the provision of
utilities and health care services. Id. at 123–24. None of the targets of
Kunesh’s criticisms of Poodry is present in this case. And, of course,
Poodry remains good law in the Second Circuit and persuasive authority
in ours.
TAVARES V. WHITEHOUSE 45
In particular, the Second Circuit held that the scope of § 1303
is equivalent to that of the general federal habeas statutes, and
that therefore the petitioners’ banishment orders satisfied the
“detention” requirement of § 1303. Id. at 890–97. It follows
from Poodry that Tavares’s banishment also constitutes
“detention” under the ICRA.
In contrast, Jeffredo, the only case until today to raise the
scope of the meaning of the term “detention” in § 1303 before
our Court, does not support the majority’s holding. In
Jeffredo, a tribe disenrolled several members “for failing to
prove their lineal descent as members of the Tribe.” 599 F.3d
at 915. We held that the disenrollment of the petitioners,
whose “movements [had] not been restricted on the
Reservation,” did not constitute “detention” under the ICRA.
Id. at 919. Specifically, we noted that “[d]isenrollment does
not mean that a person is banished from the [tribe’s]
Reservation,” and that the habeas petitioners in that case
“ha[d] not been banished from the Reservation.” Id. at 916,
919. This case presents the inverse fact pattern: Tavares was
not disenrolled from her tribe, but she has been
banished—her movements are restricted on the reservation.
Jeffredo was about membership, not physical liberty; this
case is about physical liberty, not membership. Because
Jeffredo is not a case about banishment, our decision to
decline jurisdiction in that case does not govern us here. See
also Moore, 270 F.3d at 790–91 (recognizing that a tribal
member who was “subjected to a fine” but who “ha[d] not
been excluded or otherwise restricted in his movements on
the Reservation” was not in detention under the ICRA).
The majority opinion extends Jeffredo from disenrollment
decisions to temporary exclusion orders because, according
to the majority, the latter are merely “another expression of
46 TAVARES V. WHITEHOUSE
[the tribe’s] sovereign immunity to determine the makeup of
the community.” Maj. Op. 25. This reasoning sweeps too
broadly and occludes the distinct driving principles behind
Jeffredo and this case.
First, a tribe’s decision to disenroll members based on
their “lineal descent” implicates the “‘tribe’s right to define
its own membership for tribal purposes,’” which “‘has long
been recognized as central to its existence as an independent
political community.’” Jeffredo, 599 F.3d at 917–18 (quoting
Santa Clara Pueblo, 436 U.S. at 72 n.32). Here, because
Tavares does not challenge any membership decision of her
tribe, her petition does not raise Jeffredo’s animating concern
of protecting “[a] tribe’s right to define its own membership.”
Id. at 917; see also Cohen’s, supra, at 175 n.25 (explaining
that banishment and disenrollment must be analyzed
differently, and “[w]here the tribe clearly separates the
banishment and disenrollment decisions . . . only the former
is reviewable under the Indian Civil Rights Act’s habeas
corpus provision”).
Second, by emphasizing that “[d]isenrollment does not
mean that a person is banished from the [tribe’s] Reservation”
and that a disenrolled tribe member’s “movements have not
been restricted,” Jeffredo acknowledged that banishment
inherently involves physical coercion that more severely
restrains an individual’s liberty, and thus is more likely to
qualify as “detention.” 599 F.3d at 916, 919. Although the
Jeffredo petitioners were denied access to a senior citizens’
center, a health clinic, and a tribal school, we were careful not
to equate “the denial of access to certain facilities” with
banishment from the reservation. Id. at 918–19. And for
good reason: denying an individual access to certain
government facilities is a far cry from denying her access to
TAVARES V. WHITEHOUSE 47
her homeland. Thus, Jeffredo undermines, rather than
supports, the majority’s determination that Tavares’s
banishment fails to satisfy the ICRA’s “detention”
requirement.10
B.
Tavares is banned from “all Tribal properties and/or
surrounding facilities.” This total physical exclusion affects
Tavares’s daily life in many ways: she cannot walk her
grandchildren to school, attend tribal meetings, ceremonies,
and events, or join her family and friends for any purpose on
tribal land. A former leader of the UAIC, she no longer can
“participate in the ceremonies and events of the Tribe’s
culture and heritage.” Instead, she “ha[s] had to sit outside
the fence and look on, as if [she] were [a] criminal[] or
untouchable[].”11 Tavares has demonstrated a severe restraint
on her liberty not shared by other members of the tribe, which
satisfies her burden of showing that she is in “custody,” and
thus in “detention.”
10
Jeffredo also comports with federal habeas precedents holding that
the revocation of certain privileges or licenses, without a concomitant
restraint on an individual’s physical liberty, does not satisfy the “custody”
requirement of federal habeas jurisdiction. See, e.g., Lefkowitz v. Fair,
816 F.2d 17, 19–21 (1st Cir. 1987) (revocation of medical license).
Jeffredo’s analysis of disenrollment is likewise consistent with other
courts’ analysis of “[d]ignitary, reputation, ‘moral,’ or psychological
harm,” which generally are considered “noncustodial statuses.” Hertz &
Liebman, supra, at 451–53 & 452 n.66 (collecting cases).
11
Here, “both parties submitted declarations in connection with the
motion to dismiss, [and] because no evidentiary hearing was held we must
accept [Tavares’s] version of events as true for the purposes of
establishing jurisdiction and surviving a 12(b)(1) motion.” Rhoades v.
Avon Prods., Inc., 504 F.3d 1151, 1160 (9th Cir. 2007).
48 TAVARES V. WHITEHOUSE
The majority makes much of the fact that Tavares was
banished “only . . . temporarily.” Maj. Op. 27. But the
majority’s opinion does not explain why the duration of
Tavares’s banishment is legally relevant in determining
whether she is in “detention” for habeas purposes. The writ
of habeas corpus addresses the fact of detention, not its
duration. An individual restrained for a day has no more
freedom during the period of restraint than another restrained
for a year. Thus, habeas relief is available to a prisoner no
matter the length of his sentence.
Even if the duration of Tavares’s banishment were
relevant in determining whether she is in “detention,” the
ten-year term of her banishment is sufficient to severely
restrain her liberty. If fourteen hours of mandatory
attendance at an alcohol rehabilitation program, Dow, 995
F.2d at 922, or five hundred hours of mandatory community
service, Barry, 128 F.3d at 161–62, is long enough to
severely restrain an individual’s liberty, then surely ten
years—more than eighty thousand hours—of banishment is,
too. Moreover, Tavares is an elderly woman. A ten-year
period of banishment may constitute much of the remainder
of her lifetime.
Nor is it clear how “temporary” non-permanent
banishment orders are within the UAIC. The case of
Tavares’s daughter, Angelina (“Angie”) Rey, is instructive.
According to Tavares, the tribe banished Rey for one year for
“defamation.” During her year of banishment, Rey was
photographed “stepp[ing] into [the tribe’s] casino briefly” and
was “banished for another year with her per capita payments
and all membership privileges suspended for a year.” As a
result, Rey “was evicted from her home and, without a home,
was unable to regain custody of her[] children.” Given
TAVARES V. WHITEHOUSE 49
Tavares’s advanced age and the UAIC’s history of
compounding “temporary” banishment orders, ten years of
banishment is not a significantly less severe restraint on
Tavares’s liberty than if the banishment order were
permanent.
C.
Undisputedly, Congress had the authority to create federal
jurisdiction over violations of the ICRA, and it chose habeas
review as the vehicle for those claims. Santa Clara Pueblo,
436 U.S. at 56–58. Critically, “Congress’ provision for
habeas corpus relief, and nothing more, reflected a considered
accommodation of the competing goals of preventing
injustices perpetrated by tribal governments, on the one hand,
and, on the other, avoiding undue or precipitous interference
in the affairs of the Indian people.” Id. at 66–67 (internal
quotation marks omitted); see also id. at 67 (“Congress
apparently decided that review by way of habeas corpus
would adequately protect the individual interests at stake
while avoiding unnecessary intrusions on tribal
governments.”). In enacting § 1303, Congress struck a
balance between the protection of tribal sovereignty and the
vindication of civil rights. Our job is not to alter that balance
based on our own views about the competing values at stake.
Rather, we ought simply to apply the standards of federal
habeas law.
This is a responsibility that Congress explicitly delegated
to the courts, and one for which we are uniquely suited and,
50 TAVARES V. WHITEHOUSE
indeed, have a duty to perform.12 But the majority contends
that tribes’ authority to ban non-members from tribal land
must mean that banishment orders cannot invoke habeas
jurisdiction. The majority claims that if banishment orders
trigger jurisdiction under § 1303, under which the privilege
of the writ of habeas corpus is “available to any person”
detained by a tribe, then “any person” under a banishment
order—including non-members of the tribe—would enjoy
federal habeas review. Because that cannot be the case, the
majority concludes that the only way to reconcile the
intrusion upon tribal sovereignty embodied by § 1303 is to
bar from habeas jurisdiction all banishment orders, including
whatever it is the majority means by “exclusion.”
The majority’s reading assumes too much. Tribes’ power
to ban non-members from their land is rooted in their inherent
power as separate sovereigns. By contrast, tribes’ power to
ban tribal members from their land was explicitly “limit[ed]”
and “modif[ied]” by Congress’s use of its “plenary authority”
to provide individual rights to American Indians and to
establish a narrow mechanism of federal judicial review to
protect those rights. Santa Clara Pueblo, 436 U.S. at 56.
12
The Supreme Court has referred to “the virtually unflagging
obligation of the federal courts to exercise the jurisdiction given them.”
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976); see also Cohens v. Virginia, 19 U.S. 264, 404 (1821) (“It is most
true that this Court will not take jurisdiction if it should not: but it is
equally true, that it must take jurisdiction if it should. The judiciary
cannot, as the legislature may, avoid a measure because it approaches the
confines of the constitution. We cannot pass it by because it is doubtful.
With whatever doubts, with whatever difficulties, a case may be attended,
we must decide it, if it be brought before us. We have no more right to
decline the exercise of jurisdiction which is given, than to usurp that
which is not given.”).
TAVARES V. WHITEHOUSE 51
There is no particular reason why we must treat an order
banning a tribal member who enjoys legitimate associations
of kin, culture, tradition, and birthright to the tribe as
equivalent to one banning a non-member with no such
associations; indeed, for the purposes of § 1303, we ought not
to. To so hold is to choose a blunt tool, even while more
precise analytical instruments are available.
D.
The majority believes that by exercising habeas
jurisdiction over Tavares’s ten-year banishment, we “would
create a perverse incentive for tribes to first disenroll and then
banish a member” to avoid federal review of the temporary
banishment. Maj. Op. 27. The true effect of the majority’s
decision is to render unnecessary that “two-step dance,” Maj.
Op. 27; all a tribe would need to do to evade federal review
is to temporarily banish a member—whether for ten years or
fifty, or longer. This creates a different “perverse incentive”:
to banish a member “temporarily”—say, for ten years—and
then to extend the banishment, again “temporarily,” perhaps
for another ten, and so on. The majority opines that
Tavares’s requested remedy “runs counter to Congress’s goal
of ‘strengthening the position of individual tribe members
vis-à-vis the tribe’ by enacting the ICRA,” Maj. Op. 27
(quoting Santa Clara Pueblo, 436 U.S. at 62), but that is
precisely backward. It is the majority’s opinion that runs
counter to and weakens that goal. The majority’s decision
makes the individual rights that Congress championed in the
ICRA dependent upon the whims of the tribe and hands the
tribe the tool by which it can evade our habeas review—the
only relief that the individual tribal member has against
arbitrary or retaliatory violations of her ICRA rights.
52 TAVARES V. WHITEHOUSE
IV.
Balancing individual civil rights against the importance
of tribal sovereignty, Congress in 1968 decided that the doors
of the federal courts are open to American Indians claiming
unlawful and significant restraints on their liberty by their
tribes. It is not for us to adjust the lines that Congress has
drawn based on our own personal views of where the limits
should be drawn. Despite Congress’s instruction to the
contrary, the majority denies Tavares the opportunity to
challenge her detention in our courts. I respectfully dissent.