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.
and Submitted March 15, 2016 San Francisco, California
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
W. Stroud (argued) and Landon D. Bailey, Hanson Bridgett LLP,
Sacramento, California; Fred J. Hiestand, Esq., Sacramento,
California; for Petitioners-Appellants.
R. Peters (argued), Steven A. Hirsch, Jo W. Golub, and Jesse
Basbaum, Keker & Van Nest LLP, San Francisco, California,
Before: M. Margaret McKeown, Kim McLane Wardlaw, and Richard
C. Tallman, Circuit Judges.
Civil Rights Act
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.
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.
panel dismissed on mootness grounds the appeal of three
petitioners whose exclusion orders had expired.
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.
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.
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).
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.
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.
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).
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
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. §
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
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
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.
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. 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.
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
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
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
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.
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
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).
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. 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
Principles Animating Habeas Jurisdiction Under § 1303 of
the Indian Civil Rights Act
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))).
second well-recognized principle is Congress's
"constitutionally prescribed primacy in Indian
affairs." Cohen's § 2.01, 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
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. 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.
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.
Per Capita Withholding Orders
threshold matter, we quickly dispose of the argument that the
petitioners' per capita withholding orders created habeas
jurisdiction under the ICRA.
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).
Temporary Exclusion Orders
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.
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; 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.
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
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."
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