Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions

• Jurisdiction: United States,Federal
• Citation: Vol. 86 No. 4
• Publication year: 2021

BANISHING HABEAS JURISDICTION: WHY FEDERAL COURTS LACK JURISDICTION TO HEAR TRIBAL BANISHMENT ACTIONS

Mary Swift

Abstract: The Indian Civil Rights Act (ICRA or "the Act") of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: (1) exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; (2) expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; (3) declining jurisdiction protects tribes' sovereign authority to determine their own membership; and (4) the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a uniform rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems.

INTRODUCTION

Imagine yourself as a federal court judge in a region where the local Indian tribe has struggled for decades to retain tribal sovereignty and preserve cultural unity in the face of powerful state governments, loss of territory, and erosion of tribal traditions. A member of that local tribe is a repeat criminal offender and is the primary supplier of illicit drugs on the tribe's reservation. The tribal court has convicted and imprisoned the individual numerous times, but federal authorities refuse to get involved for the more serious drug offenses.(fn1) Exasperated and left with few options, the tribal council moves to banish the individual. Banishment will mean the individual is cast out from tribal lands and removed from the tribe's membership rolls.(fn2) After a full hearing before the tribal council and an option to appeal to the tribal court, the individual is banished from tribal lands. The tribal member now appears before your court on a writ of habeas corpus,(fn3) alleging that the banishment constitutes unlawful detention under the Indian Civil Rights Act (ICRA or "the Act").(fn4) If you side with the tribe and deny the writ of habeas corpus, it means that the banished individual has no further remedy. But if you agree with the banished tribal member and grant the writ of habeas corpus, you risk undermining the tribe's sovereignty by interposing a federal court in matters of tribal membership. This issue is one federal courts have struggled with in recent decades as a result of increased tribal banishment and limited federal jurisdiction over ICRA violations.

In 1968, after years of hearings, Congress enacted ICRA to provide substantive civil rights-similar to those protected by the Bill of Rights and Fourteenth Amendment-to tribal members. (fn5) Though ICRA championed individual rights typical of the Civil Rights Era, it also reflected Congress's attempt to increase tribal sovereignty. While the Act requires tribes to recognize substantive rights for tribal members,(fn6) only one federal court procedure is available to remedy ICRA violations: the writ of habeas corpus.(fn7) ICRA's habeas provision, 25 U.S.C. § 1303, provides: "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."(fn8) Habeas is a limited remedy, available only when there are "severe restraints on individual liberty,"(fn9) whether physical custody or another immediate restraint like parole. (fn10)

In the seminal 1996 case of Poodry v. Tonawanda Band of Seneca Indians,(fn11) the U.S. Court of Appeals for the Second Circuit found that permanent tribal banishment is a severe enough restraint on liberty to warrant habeas jurisdiction under ICRA.(fn12) Two years later, the Second Circuit limited Poodry, finding that tribal disenrollment was not a severe enough restraint on liberty to warrant the exercise of habeas jurisdiction.(fn13) The Second Circuit's finding of habeas jurisdiction for banishment but not disenrollment informed similar lower court cases that followed.(fn14) No other federal circuit court of appeals considered the banishment/disenrollment issue again until the Ninth Circuit in 2010. Adopting the Second Circuit's reasoning, the Ninth Circuit declined to exercise habeas jurisdiction over a tribal disenrollment action,(fn15) despite an impassioned dissent advocating for jurisdiction.(fn16)

Banishment is an ancient punishment used by tribes to preserve order and rehabilitate tribal members. (fn17) Historically, tribal members who committed grievous crimes like murder would be cast out of the tribe for a period of time to reflect on their actions.(fn18) Such banishments helped maintain tribal cohesion, essential to cultural identity and protection.(fn19) In the past two decades, tribes have begun using banishment again to combat drug abuse and crime ravaging tribal communities. (fn20) Until recently, tribes could only imprison individuals for up to one year,(fn21) so often banishment has been used as a last resort against repeat offenders.(fn22) Unfortunately, some tribes also use banishment as a retaliatory measure against members who speak out against the tribal government.(fn23) Banishment today most often includes permanent expulsion from tribal lands and loss of tribal citizenship.(fn24) Due to the harsh consequences of banishment and its reemergence as a sanction from tribal courts, tribal members have been challenging their banishment in federal courts under ICRA's habeas provision.(fn25)

Individuals also use the same ICRA habeas provision to challenge their tribal disenrollment, often relying on similar arguments as in banishment cases. (fn26) Also on the rise in recent decades,(fn27) disenrollment usually involves loss of tribal citizenship and denial of access to tribal facilities.(fn28) Despite the line federal courts have drawn between disenrollment and banishment, the functional difference between the two is often not significant. Tribes have sovereign authority to exclude nonmembers from tribal lands.(fn29) As a result, once tribal members are stripped of their tribal citizenship-through banishment or disenrollment-the tribe can then expel that individual from tribal lands.

Both banishment and disenrollment impose significant hardship on individuals through loss of tribal citizenship, benefits, and access to tribal facilities. But federal courts should refrain from exercising habeas jurisdiction over banishment actions, given tribal sovereignty and tribal authority to make membership decisions.(fn30) Tribal sovereignty was hard won and tribes continue to struggle for the right to determine membership and governance free from federal interference.(fn31) Without sovereign authority to determine its own membership, a tribe's cultural identity is in peril. Denying habeas jurisdiction over banishment actions may leave some tribal members without a remedy, but such a result is necessary to preserve tribal sovereignty and promote tribal self-government.(fn32) Such a result also corresponds to the careful balance struck by Congress and the U.S. Supreme Court between individual rights and tribal sovereignty.(fn33)

Part I of this Comment provides an overview of historic tribal sovereignty and Indian law canons of construction, which govern judicial interpretation of statutes regulating tribal affairs. Part II describes the historical context, statutory text, and legislative history of ICRA relevant to interpreting the Act's habeas provision. Part III discusses Santa Clara Pueblo v. Martinez,(fn34) in which the U.S. Supreme Court interpreted ICRA for the first time and foreclosed any implied causes of action, leaving habeas as the only federal remedy for ICRA violations. Part IV details U.S. Supreme Court interpretations of general federal habeas jurisdiction to inform proper interpretation of ICRA's habeas provision. Part V discusses federal court cases addressing whether ICRA's habeas provision can be used to challenge tribal banishment or disenrollment. Lastly, Part VI argues that federal courts should not assert habeas jurisdiction over tribal banishment, because: (1) exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; (2) expansive habeas jurisdiction upsets the delicate balance struck by Congress and the U.S. Supreme Court between individual rights and tribal sovereignty; (3) declining jurisdiction protects tribes' sovereign authority to...