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Tavares v. Whitehouse

United States Court of Appeals, Ninth Circuit

March 14, 2017

Jessica Tavares; Dolly Suehead; Donna Caesar; Barbara Suehead, Petitioners-Appellants,
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.

          Argued and Submitted March 15, 2016 San Francisco, California

         Appeal from the United States District Court D.C. No. 2:13-cv-02101-TLN-CKD for the Eastern District of California Troy L. Nunley, District Judge, Presiding

          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.

          Before: M. Margaret McKeown, Kim McLane Wardlaw, and Richard C. Tallman, Circuit Judges.


         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.


          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 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.


         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 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.

         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 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.

         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, " 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 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.


         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 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 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 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 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, 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, ...

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